Michael Graham

In a judgment delivered on 30 June 2023, Northern Ireland’s High Court quashed the decision of the Department of Health to adopt a controversial policy in 2021 in relation to continuing healthcare.

The Department was found to be in breach of its obligations to have due regard to the promotion of equality of opportunity between persons of different age under section 75 of the Northern Ireland Act 1998. The 2021 policy had effectively restricted the availability of continuing healthcare to those receiving treatment in hospital.

The application had been brought by the Commissioner for Older People for Northern Ireland. In addition, the co-applicant, Mr Robin McMinnis, a nursing home patient, was granted relief on the basis that the Belfast Health and Social Care Trust failed to apply a fair procedure in assessing his eligibility for continuing healthcare.

In essence, the concept of continuing healthcare is based on the fact that healthcare in the United Kingdom is free at the point of use. In case law which has been developed in other parts of the UK, it has long been established that, where a patient has a ‘primary healthcare need’, then any element of social care, such as accommodation, provided to them as part of their overall care package is merely ancillary to their healthcare and no element of the package may be charged for.

This is in contrast to the position where a patient’s primary need is one of social care, as in such cases a means assessment would normally be carried out. Where continuing healthcare is not available, patients with assets in excess of £23,250 will normally be required to fund their own care, save where one of a number of other exemptions apply.

Whilst this decision does not guarantee that the Department of Health will adopt the same position as in other parts of the UK, it will be necessary for them to reconsider their policy in relation to continuing healthcare, and it is to be hoped that a more appropriate eligibility test will be developed. That should bring some much-needed clarity to this area of the law.

It is important to note that continuing healthcare would normally only be available to someone who suffers from significant health issues and where there is likely to be some element of unpredictability to their condition which requires regular medical treatment.

It therefore stands to reason that the overall number of patients qualifying for continuing healthcare will continue to be low but it is certainly an issue which patients and their families should be aware of with a view to raising it with their Health Trust in appropriate cases.

• Michael Graham is head of private client at Cleaver Fulton Rankin.