A High Court judge has quashed the Department of Health’s continuing healthcare policy in a landmark legal challenge in Northern Ireland.

Commissioner for Older People for Northern Ireland, Eddie Lynch, acted on behalf of his client Robin McMinnis, a 75 year-old man who is quadriplegic, living with  multiple sclerosis and other complex healthcare needs, who was denied continuing healthcare under the original 2010 policy and subsequently has been self-funding his healthcare in a care home. 

Continuing healthcare is designed to ensure that the most acutely ill people in society should not contribute to their care home costs if their care needs are assessed as being primarily healthcare needs as opposed to social care needs.

The commissioner argued the original policy lacked any clear eligibility test or methodology for assessment as well as any sufficient guidance rendering it inaccessible to anyone who may qualify for it.

Lynch also argued a change to the policy in 2021 was unlawful and unreasonable and effectively eradicated any chance of anybody receiving continuing healthcare funding in the future. 

The change introduced a single criteria question where people are asked: ‘Can your care needs be met properly in any other setting other than a hospital?’ if the answer is yes, then the person is deemed not eligible for continuing healthcare. 

Lynch argued this single eligibility criteria question essentially eradicated any chance of a person with serious clinical needs being able to receive continuing healthcare funding in the future, because the type of care that care homes can provide has advanced with clinical healthcare needs now delivered and managed by a range of care homes.

Mr Justice Scoffield determined that Mr McMinnis’ application for continuing healthcare was “procedurally unfair” when it was refused by the Belfast Health and Social Care Trust. The failure of the Department of Health to provide guidance on the application of the policy to the trust was also criticised. The judge ruled that Mr McMinnis must be re-assessed using a lawful process and following guidance from the Department which he ruled must now be issued.

The judge also quashed the new 2021 policy “on the basis that it was adopted in breach of its obligation to have due regard to the need to promote equality of opportunity between persons of different age under section 75 of the Northern Ireland Act 1998” and that “the screening exercise undertaken did not begin to properly consider the true impact of the new policy on older people”.

A Department of Health spokesperson said: “The Department will be considering the judgement, before deciding on next steps.”