NHS Care

Information from Derek Cole

updated 1130 Saturday 1st January 2006

Almost all of the information on NHSCare.info originates from Derek Cole, who has described himself as a "71 year old retired Headmaster and only an academic lawyer". Robin has simply set up this site and helped to get the press interested. Much of Derek's earlier hard-hitting publicity can still be seen on the What the Media Report and Parliament pages above. Robin is extremely grateful to Derek, who has provided invaluable legal advice, and assistance in writing the many letters required for Robin's own mother's case. Derek has provided this advice to Robin and a number of other people in similar situations. Derek and Robin would like to thank those who successfully won their own cases, and shared information to help others. There is no way that Derek could cope with the deluge of work related to the countless families who might soon know they have a claim to make. However, we hope these pages will help others to do what they need to do.

Simple advice from Derek ...

This is the advice also on our front page:

consult these pages including the overview to confirm that you have a case: discuss with close friends and relatives.
do what you feel is right for the patient. This may include going along with unlawful advice from Social Services.
make sure you have written at least one letter, mentioning Coughlan, such as this draft letter.
keep a paper file of all information such as printouts from www.nhscare.info, all letters and medical history.
take care what you sign when dealing with NHS and Social Services. Your signature might indicate agreement. If you feel you must sign, in the interests of the patient, then add a comment beside your signature such as "Without prejudice. All Rights Reserved: see www.nhscare.info".
record in writing any disagreement with NHS/Social Services: by them and by yourself soon after the meeting. They might later claim, "if it's not written down, it didn't happen".
find a close friend or relative able to write and respond to letters over what may be many years.
Consider refusal to pay for care. If so, consult Derek via the contact page.
otherwise, write a complaint letter to the Primary Care Trust (PCT) - but see Derek's page on this.
complain to the Ombudsman ? consult her checklists here.
help us "spread the word".

complaint letter to the Primary Care Trust (PCT) ...

Experience has shown that, for the vast majority of cases, writing a complaints letter is a "dead end". If you write the letter, and follow their complaints procedure, don't expect the right result. However, you should consider this process; if not, the PCT might argue that you should have done this when you later pursue the matter with the Ombudsman or through the courts.
The advice related to the complaints procedure are:

write a complaint letter, claiming 100% NHS funding under Coughlan, to the Primary Care Trust (PCT). mark your letter 'Official Complaint' and address them to the Complaints Manager of the PCT - the hospital the patient was in. Send copies of this letter to the Chief Executive of the PCT, Social Services, and whoever you feel appropriate - including close friends or relatives, in case the authorities later claim your letter was "lost". See draft letter and those on Robin's Mother's case page.
If rejected, asked for an 'External Enquiry' .

contacting us ...

If you are a patient or their family, please try and answer your questions by reading these pages, before contacting us.
You will find email addresses and 'phone numbers on our contact page.

more information from Derek ...

Here are some more pages that Derek has kindly suggested be put onto NHSCare.info. Simply click on the link to view each page.
Introductory Briefing from Derek
"Free NHS Care History" by Steve & Derek
"patient still at home" advice from Derek
Writing to your NHS Chief Executive
Letter to East Sussex County Council... draft 'eligibility criteria'
Ombudsman Dorset ruling
Second Ombudsman's case - Reading
Draft 'eligibility criteria' for the Strategic Health Authorities
this is the standard letter I am sending for patients still in hospital.
Advice for those in Scotland
Derek's speech at the 2005 Guillain Barre Conference
A note on Guillain-Barre and more about Derek

Latest news from Derek ...

20th June 2005: Extracts from Derek's recent letter to the BMA (British Medical association) is here.
Extracts from Derek Cole's recent letter to the Law Society is here.
4th April 2005: Derek's Press Release
1st March 2005: Derek's summary of his report given to the Commons Select Committee.
27th February 2005: Derek's advice to the Commons Select Committee in TVSHA - A study in Misfeasance and Ignorance
18th November 2004: Derek's expert legal advice given to MPs here
30th July 2004: see advice in "DANGER - No Win No Fee Claims" below.
3rd March 2004: see letter to Lord Hunt of 3rd March 2004 for "The Government should obey the Law." and:
"...failure of Ministers to honour the promises you made to Parliament to secure the passage of the Delayed Discharges Act..."
14th July 2003: One bully-boy tactic is to threaten to move patients to another home if families assert the right to 'free continuing care' under Coughlan. Mark Oley of Unison, who with David Atkins runs the RAGE campaign against Home Closure, asks everybody to ask their M.P. to sign the Early Day Motion ... click here for more
14th July 2003: In Coughlan the Court of Appeal said - 'the fact that a patient is being treated in one setting rather than another will not affect their health care needs.' The refusal to consider those in residential homes is thus, very specifically, unlawful. I am writing to the Ombudsman. The regulation requiring a continuing care review panel is Annex E (pages 16, 17 & 18) of the Health Service Circular / Local Authority Circular HSC 2001/015: LAC (2001)18. They try and fob you off with this and say it is the only appeal. It only interprets the criteria. It cannot consider the Coughlan ruling. It can be ignored by the PCT. However, if refused, you are fully entitled to use the complaints procedure - stage one protest letter to the complaints officer; stage two Independent review under a Lay Chair, under the following regulation. HSC/LAC Annex F (pages 19 & 20) The Court of Appeal in R (Cowl) v Plymouth City Council, 14th Dec, 2001 requires both sides to use this complaints procedure before going to Court.
31 March: This may be a breakthrough: in North East the Independent Lay Chair in the 'Independent Review' has directed the PCT to look again. Further the complaints officer has said on the phone. 'We know we have got it wrong. The trouble is that with all the claims being made we are bankrupt'. This is the first response we have from a Lay Chair and does stress the need to insist on an 'Independent Review' under stage two of the complaints procedure. Do NOT ever accept a 'Review Panel' within the criteria as they only interpret the (unlawful) criteria. They do not obey the law. The ombudsman has not been involved as yet in this case.
Derek Cole.
15 March: letter to Nick Relph of TVSHA: see "we shall sue members of your board personally"
27 Jan: "The Thames Valley Health Authority (TVHA) 'eligibility criteria', intended to be introduced on 1st February 2003, are catastrophically unlawful and in open defiance of the Court of Appeal." and... "The TVHA criteria are so monumentally unlawful that I am looking into the possibility that officers who adopt or implement them are personally liable for 'misfeasance in public office'".
For details of Derek's report, see TVHA Criteria "Catastrophically Unlawful"
Also: "Whoever drafted the letters for the Ministers should be sacked"
For a fuller list of news items from Derek, please click here
You may email Derek Cole on derekc@nhscare.info

DANGER - No Win No Fee Claims

Radio 4 broadcast a warning showing that in 'No win, no fee' cases if you do 'win' the costs you cannot reclaim from the other side may well exceed the amount you get.
Your solicitors are likely to spend money like water to make sure you 'win' so that they get paid but, because you 'won', the insurance doesn't pay your own losses.
Although it was not a 'no win, no fee case, Habib Bank Ltd v Ahmed and others (2004) EWCAciv 805) 24th June, 2004 reduced the costs payable by the loser from Ł54487.50 to Ł26195.
Lord Justice Sedley said 'Almost 58 hours' work had been claimed ......in the court's view not more than 8 hours had been necessary. .....two solicitors had not attended the hearing .... the second person ....a trainee. Had the bill gone through on the nod, as frequently happened, ....would have been paid by the interveners (losers) for the attendance of a solicitor who had not been there. ...... no need for a partner to attend ...... fees ....of an assistant solicitor would be allowed.
....not one which necessitated two Counsel........issues and evidence well within the grasp of a competent junior. Junior counsel's fees would be allowed, but not those of leading counsel.'
Although this kind of case is not usually quotable as a precedent, the Court directed that it could be cited.
Anybody starting a 'no win, no fee' case should instruct their solicitors as follows.
'If we win partially or completely, in the event that costs not recoverable from the other party exceed the amount awarded, I cannot afford to meet any such excess and hereby do not accept liability for those excess costs over and above the amount awarded'.
If the solicitors refuse to accept such a limitation, that is a good sign not to proceed.
Derek. (30th June 2004)