Raphael Medical Centre (Neurological Rehabilitation) v Commission for Social Care Inspection (CSCI) Rev 1 [2002] EWCST 54(NC) (07 October 2004)

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England and Wales Care Standards Tribunal

You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Raphael Medical Centre (Neurological Rehabilitation) v Commission for Social Care Inspection (CSCI) Rev 1 [2002] EWCST 54(NC) (07 October 2004)
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Cite as: [2002] EWCST 54(NC)

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Raphael Medical Centre (Neurological Rehabilitation) v Commission for Social Care Inspection (CSCI) [2002] EWCST 54(NC) (07 October 2004)

Raphael Medical Centre (Neurological Rehabilitation) (54 NC)

Raphael Special Care Unit (Mental Health Unit) (Psychiatric Unit) (55 NC)

-v-

Commission for Social Care Inspection (CSCI)

[2002] 54-55 EA

-before-

His Honour Judge David Pearl

(President)

Dr S. Kumar

Dr C. Treves-Brown

10^th February 2004,

9^th, 15^th, 16^th July 2004,

1^st, 2^nd September 2004

DECISION

Introduction

This is an appeal against two decisions of the Registration Authority (formerly the National Care Standards Commission, but since April 2004 the Commission for Social Care Inspection) to register the Raphael Medical Centre and the Raphael Special Care Unit as "care homes" under s 3 of the Care Standards Act 2000. The Appellant challenges both decisions on the basis that both establishments are "independent hospitals" within the definition as set out in s 2 of the Care Standards Act 2000.

Before the Care Standards Act 2000 came into force there was no category of "independent hospital". There were two categories of nursing homes; namely "ordinary" nursing homes and those registered to care for people with mental disorder.

The last registration certificate under the Registered Homes Act 1984 shows that the Raphael Medical Centre was registered to provide a nursing home accommodating up to 34 persons in the following five categories; elderly infirm, medical rehabilitation, post operative rehabilitation, palliative care, and physically disabled. The Special Care Unit was classified as a nursing home with a maximum number of 8 residents and with the category of mental illness rehabilitation subject to the proviso that patients detained under the Mental Health Act 1983 will not be accepted.

The Care Standards Act 2000 (Commencement No 9) (England) and Transitional and Savings Provisions) Order 2001 (schedule 1 paras 3-5) required the existing Regulator, in this case Kent Registration, to send a completed Transfer of Registration Form to the provider and for the provider to complete the form and return it to the Regulator. The Regulator then filled in the appropriate new Care Standards Act category.

The Regulator classified both establishments as "care homes with nursing" (tab 9, p 15). The provider then made representations against these proposals to the National Care Standards Commission, which rejected the representations and determined the categories as set out in the Transfer of Registration Forms. The appeals are against these determinations.

At the hearing before us, Ms C. Booth QC instructed by Lester Aldridge, Solicitors appeared on behalf of the Appellant, and Mr R. McCarthy QC instructed by Bevan Ashford, Solicitors appeared on behalf of the Respondent.

Mr McCarthy submits in his Closing Submissions that if the establishments are registrable as care homes with nursing they would be classified under the NCSC (Registration) Regs 2002 Sch 7 part II paras 6 with the appropriate range of service user categories. As long ago as 9^th August 2002, in the Response Form A4, the Respondent submitted "if the Appellants choose at some stage to specify what service user categories they say would be appropriate to a care home registration then the Commission will respond." Mr McCarthy submits also that there is no type of independent hospital registration that fits the Raphael Medical Centre within the list as set out in paragraph 8(b), although he acknowledges that the Special Care Unit (if we were to decide against the Respondent) could presumably be classified as MH (mental health treatment establishment).

Whilst we see the strength of Mr McCarthy's submission, paragraph 8(b) does not demand that an Independent Hospital must fall within one of the categories set out in paragraph 8(b). It may be somewhat unusual, but it seems to us that the legislator has allowed for a degree of flexibility by stating that the Register should contain "which (if any) of the following categories in respect of service users are applicable, each category to be indicated by reference to the code."

On 18^th February 2004, following a hearing on 10^th February 2004, we issued a Ruling on the legal test that should be applied to decide whether each of the two establishments falls within s 2(3)(a)(i) of the Care Standards Act 2000 (an independent hospital) or s 3(1) of that Act (a care home). Our Ruling is attached to this Decision as Appendix A and is incorporated into this Decision. It is helpfully summarised in "Care Standards Manual" by Richard Jones (Sweet & Maxwell, 2004) at pp. 6-7.

The Tribunal, by Order dated 26^th June 2003, appointed Professor D.L.McLellan of the Peartree House Rehabilitation Centre as an expert under Regulation 13 of the Tribunal Regulations to enquire into and report on whether each unit is an establishment, the main purpose of which is to provide medical or psychiatric treatment for illness or mental disorder or palliative care, or whether they are establishments which provide accommodation together with nursing or personal care. Professor McLellan's clinical background is as a Consultant in Neurology and Rehabilitation Medicine.

The Respondent has called its own experts, namely Professor D. Wade in relation to the Medical Centre and Dr L. Measey in relation to the Special Care Unit. Professor Wade is a Consultant in Neurological Disability at the Oxford Centre for Enablement and Professor in Neurological Disability in the Department of Clinical Neurology at Oxford. Dr Measey was a Consultant Psychiatrist at the Coventry Healthcare NHS Trust. The Appellant has called Dr L. Landham as its expert in relation to both establishments, as well as Dr M. Debenham who is a consultant working for the establishments. Dr Landham is a Consultant in Rehabilitation Medicine and the Clinical Director of Rehabilitation Services at the Department of Rehabilitation Medicine at Medway Maritime Hospital, Gillingham, Kent.

The name of a Dr Kemp materialised for the first time on the first day of the hearing as a possible additional expert to be called by the Appellant in relation to the Special Care Unit. This was objected to by Mr McCarthy on behalf of the Respondent. Whilst the Tribunal appreciates that the evidence of Professor McLellan has shifted since his first Report to the Tribunal, and that therefore the Appellant finds itself facing a less than favourable Report from its point of view, we decided that leave could not possibly be given at this very late stage. The Appellant has been aware for some considerable time, and certainly from the time of the letter of instruction to Professor McLellan sent by the President of the Tribunal on 30^th March 2004 (tab 30 pp 250ff) that the Respondent had challenged the expertise of Professor McLellan to comment on the Special Care Unit. Yet no application was made by the Appellant for their own expert to report on the Special Care Unit to be appointed at that time. Up until the Joint Report of the Experts dated 13^th July 2004, the Appellant had been content to rely on Professor McLellan's expertise in this field, and indeed had made as unsuccessful application for the Professor to revert to being an expert called by the Appellant. This application was refused on 12^th December 2003 (tab 51 p 313).

In addition, the application of the Appellant to seek an extension from 18^th June 2004 to 29^th June 2004 to submit statements, in particular that of Dr Landham, had been granted on 14^th June 2004. Paragraph 4 of that Order states: "No further extension will be granted." There was an application ex parte by the Respondent to amend this Order. That application was rejected. The Order states: "I urge on the Appellant (the Order actually states Respondent which is an obvious typing error that for the avoidance of any doubt is hereby corrected in accordance with Reg 29(3) of the Regulations) the importance of filing the statements as soon as possible, and in particular the statement of Dr Landham…No further extension beyond 29^th June will be granted." Thus, on two separate occasions the Appellant has been told that 29^th June 2004 is the latest by which statements can be filed.

The application by Ms Booth on the first day of the hearing on 9^th July 2004 to introduce another expert report, in the light of this history, was thus rejected. Professor McLellan and Dr Measey were available for cross-examination and in the result were both subjected to extensive cross-examination.

At the conclusion of the hearing on 2^nd September 2004, we asked for Concluding Submissions in writing. Ms Booth's submissions arrived at the Tribunal on 15^th September, and Mr McCarthy's submissions arrived on 21^st September 2004. The two Responses to Closing Submissions arrived by email on 27^th September 2004. We are grateful to both leading Counsel for the detailed submissions they have presented to the Tribunal in this most complex of cases raising, as Mr McCarthy recognises in his Closing Argument "some difficult issues for the Care Standards Tribunal."

Before we turn to consider the two establishments, we need to set out briefly the approach this Tribunal has taken with regard to the role of the two lay members as this question has figured in the concluding submission of Mr McCarthy and the response from Ms Booth. Both lay members have been appointed by the Lord Chancellor to the panel of lay members as qualifying under Regulation 3(5)(h) of the 2002 Tribunal Regulations (SI 2002/816) as "…a registered medical practitioner who has experience of the provision of health care services." The President nominated both members to hear this case under Regulation 5(5) as members of the lay panel who appear to him to have experience and qualifications relevant to the subject matter of the case.

Mr McCarthy in his submissions states that "the medical members [actually they are referred to as 'lay members' by Statute, rather than as 'medical members'] may properly use their expertise to evaluate the evidence given or draw inferences from evidence. This expertise cannot properly be used to contradict evidence that has been given nor to introduce new evidence that should be made available to the parties". This is the approach that this Tribunal has adopted, applying the principles as set out in Kirton v Tetrosyl Ltd [2002] IRLR 840, EAT. The lay members have attempted to apply their knowledge in a general way, using their expertise for the purpose of explaining and understanding the evidence that we have heard. This knowledge has therefore assisted the Tribunal as a whole in reaching a conclusion.

The two establishments

The Managing Director of Raphael Medical Centre is Dr G. Florschutz. He has a degree in Business Administration, and a PhD in Art History. He is a Fellow of the Chartered Managers Institute and a member of the Cognitive Rehabilitation Society. He founded "Raphael" in 1983 with his wife, at Hollanden Park, Coldharbour Lane, Hildenborough, Tonbridge, Kent. "Raphael" initially admitted a wide range of patients ranging from those with acquired brain injury, orthopaedic rehabilitation, acute and chronic back pain, cancer (both for active therapy and palliative care) and elderly patient rehabilitation. The Special Care Unit was established "in or about 1996" to provide an eight bed unit for patients who have acute or chronic mental health problems.

Paragraph 6 of Dr Florschutz' witness statement is important. He writes: "It was a founding principle of Raphael that we did not simply provide nursing care for patients but that we provided medical and therapeutic treatment supervised by qualified doctors." The Vision Statement (tab 16 p 50) dated February 2003 states: "to develop and provide a residential clinic, based on the anthroposophical image of man which recognises man as a being of body, soul and spirit. Through working in close co-operation with conventional medical facilities and the development and support of our personnel, we can bring about an improvement in the health of individuals."

Dr Florschutz exhibits to his witness statement, a Paper entitled "Anthroposophic Medicine: Its nature, its aims, its possibilities" (tab 61 pp 526-548) published in March 2004 by the Medical Section, School of Spiritual Science, Goetheanum, Dornach, Switzerland. We have read this document with care, and we can summarise its content by stating that the author (who is not identified) explains Anthroposophic Medicine as being based on accepted medical science and that it is not an 'alternative medicine' aiming to replace conventional medicine. It makes use of everything that scientific research has revealed to be of benefit to the human being, but offers, additionally, a range of specific holistic options placing the uniqueness of the individual at its centre.

It is our understanding of the Respondent's position that the practice of the Anthroposophic approach by itself is not a factor in its position that the two establishments are correctly classified as care homes. However, Mr McCarthy insists that this approach cannot be called medical treatment unless it is acknowledged to be such by a responsible body of medical practitioners within the medical community in which the issue is being contested. He urges us to reject the anthroposophic approach as falling within medical treatment.

Ms Booth summarises the Appellant's position relating to anthroposophic medicine as follows: "It is not our case that in the UK, as opposed to Germany, that the specifically anthroposophical treatments, such as bath oils etc, are medical treatments but it is our case that they are complementary to a main purpose which is to provide medical treatment for rehabilitation which is enhanced by the use and expertise found in the anthroposophical approach."

There is therefore a measure of agreement between the parties; namely that our decision should not be determined by our view on the anthroposophic approach to medicine.

In his evidence to us, Dr Florschutz explained why it was important to him that the two establishments should be classified as "independent hospitals." He said in evidence: "it is our contention that we provide, as our main purpose, medical treatment and therapeutic treatment and, as such we should be registered as an independent hospital. The reason why it matters to us is that section 3 of the Care Standards Act 2000 …prevents you from providing medical treatment and therapeutic treatment as your main purpose….the danger being that… you might have an officious inspector coming and saying '…what you are doing is medical treatment. You are not registered – stop forthwith.' In cross-examination by Mr McCarthy, Dr Florschutz emphasised that it was important to him that the classification should adequately reflect the work that is being done in the two units.

We think that Mr Hope gets close to the real reason for the dispute in his evidence. We deal with Mr Hope's evidence later in this decision. He said "I think the Raphael Medical Centre…needs to be able to progress in the world of neuro-rehabilitation and become…well-known regionally and nationally... It probably wouldn't stop things ticking along but it's a changing world and whereas things might have ticked along in the past I think the lack of a hospital registration would certainly inhibit that". In answer to a question from the Tribunal, Mr Hope said: "If they [i.e. potential funding agencies] had a choice between placing somebody in somewhere which was registered appropriately and somewhere which wasn't, unless there was a huge financial discrepancy, they would place in the one which was registered appropriately."

The Qualifying Operational Time

We agree with Ms Booth in her Concluding Submissions that the "focus of the hearing has been concentrated on the definition of medical treatment, but it has also been driven by the accounts of what was actually happening…at the time of the relevant visits." It is agreed by both sides that the relevant date for applying the test that we have set out in our Findings on Law is the date of the transfer of the Registration Certificates, namely 1^st April 2002. We have stated in our Findings on Law that we are entitled to look at later developments if these developments are a continuation of what has gone on before, rather than a radical and fundamental change.

Ms Booth submits that there is nothing in the evidence to show that any changes that have necessarily occurred since April 2002 are anything more than natural growth and evolution in response to changes in the demand for its services.

Mr McCarthy submits that there have been significant changes in the running, staffing and aims of the establishments since early 2002. He suggests that Raphael has changed "some aspects of the establishments as part of an attempted improvement of its profile in the specific context of the registration dispute. The alterations are largely presentational. They cannot therefore be seen as part of the evidence upon which the Appellant can rely upon to demonstrate that it was an independent hospital in early 2002." Mr McCarthy draws our attention in particular to statements in the 2002 brochure relating to the Vision Statement, the Aims and Objectives, and the Facilities and Services and compares it with the 2003 Brochure. He illustrates his point by the fact that the Admissions Procedure in the 2002 Brochure does not show any medical assessment and does not show any in-depth pre-admission rehabilitation assessment. Similarly, whereas in the 2002 brochure, the Organisational Structure shows the Medical Team in a column on its own, in the 2003 brochure, the Medical Team is included under the heading Medical Services which includes both medical and therapeutic services. He submits that the changes from the 2002 to the 2003 brochure are no more than a cosmetic re-jigging of the material.

Mr McCarthy submits, however, that in other areas there have been very substantial changes in the manner in which the establishments have been run since 2002, and that the recent appointment of Dr Moerchel as a doctor with anthroposophic training is a significant departure point. Dr Hashmi was appointed as from January 2004, and it is submitted that he worked longer hours than the previous GP support. He also draws our attention to the fact that a clinical psychologist is now engaged, but only from 2004. It is his submission that these changes are a response to the Commission's concerns.

Having looked carefully at this evidence, and in particular the difficulty experienced in the recruitment of both doctors and therapists, we have arrived at the conclusion that we prefer the approach submitted by Ms Booth as being closer to the reality of what has happened in the last two years. It is our finding that there has been no fundamental change in the last two years, but rather an incremental progression. The introduction of some changes so as to comply with the perceived views of the Commission does not alter our view. We are entitled to consider, therefore, all of the evidence that we have read and heard to help us answer the question of the correct status of the two establishments in April 2002. The brochures are of some use, but we concentrate on what was actually happening in the establishments rather on what the literature says is happening.

We consider each of the units separately.

Special Care Unit [55 NC]

Professor McLellan's first Report is dated 21^st July 2003 (tab 53 pp 315ff). He visited the two establishments on 16^th July 2003. He recommended that the Special Care Unit does meet the specifications required of an Independent Hospital despite its relative small size, and therefore should be designated and regulated as such. His second Report (tab 56 pp 337ff) is dated 23^rd April 2004 and was written subsequent to the Findings on Law. He confirmed his approach, stating "In my view, the fragile and vulnerable mental state of the client group treated at [the Special Care Unit] as described to me by Dr Debenham denotes a need for psychiatric treatment of a high standard in order for 'care' to be feasibly provided and on these grounds the Raphael Special Care Unit should…be regarded as a hospital". The joint Report was signed on 15^th July 2004, and Professor McLellan defers to the view of Dr Measey (that we shall be considering in detail later in this judgement) and recommends that the Special Care Unit is a care home.

In his evidence to us, Professor McLellan explained why he had changed his opinion. He was aware that there were two contradictory views from psychiatrists, namely Dr Debenham and Dr Measey both of whom knew more about the patient group than he did. Professor McLellan is of course not a specialist in the area.

Whereas Dr Debenham had told him that the patients, if not at the Special Care Unit, would otherwise have required admission to a hospital, Dr Measey had said that the patients in Raphael would otherwise be in a care home. Professor McLellan had been happy to accept Dr Debenhams's views but he had now been persuaded by Dr Measey to adopt the other approach. He said in evidence: "on balance I felt that in a situation where I had two people giving different opinions I deferred to Dr Measey." He said that he "had discomfort" about this change of mind but that nevertheless it was a conclusion that was reasonable to come to. Indeed he went as far as to say in answer to a question from Ms Booth that he was "uneasy" because he is aware that Dr Debenham knows these patients well and Dr Measey of course can't have known them in the same way as Dr Debenham.

We do of course sympathise with Professor McClellan's situation. He said in evidence: "I changed sides. That is never comfortable". We are sure that Professor McLellan will understand that in these circumstances, in relation to the Special Care Unit, we have decided not to take account of his first two Reports and to rely instead on the evidence of Mr Deery and Dr Measey in support of the Respondent's position, and the evidence of Dr Florschutz, Dr Debenham and Dr Landham in support of the Appellant.

We heard evidence from Mr A. Deery, the Head of Mental Health for the Private and Voluntary Healthcare Division of the Healthcare Commission. His statement is dated 21^st May 2004 (tab 60 pp 501-516). He was formerly employed by the National Care Standards Commission, and he was responsible for undertaking an assessment of the Special Care Unit so as to provide a view as to whether the unit satisfied the criteria for an independent hospital. He visited on 17^th February 2003 and wrote his report dated 5^th May 2003. After the Tribunal's Findings on Law, he undertook a further visit on 17^th May 2003. He did not change his view that the Special Care Unit was not a hospital. He based his conclusion on examining the Statement of Purpose against the Care Standards Act and the Independent Healthcare Regulations; discussions with Dr Florschutz, Dr Debenham, the nursing staff, the art therapist, and other care staff, examination of the resident case records, observation of the environment and accommodation, and review of published information such as NICE Guidance 2004, National Service Framework for Mental Health, and the Mental Health Act Code of Practice 1983.

It was his view that the Unit was providing an enhanced social care programme by having the psychiatrist visit to monitor the medicine's management and that this is entirely appropriate within a care home registration. He concluded his witness statement "I believe that their current legal status and the registration status of the home does provide sufficient safeguards to them, they are indeed lawfully entitled to leave the facility if they so wished and there are no interventions currently being delivered that require a greater level of clinical scrutiny than is provided by the social care regulations. To alter this position would create a more restrictive environment for these residents which is not what they require."

In his evidence before us, Mr Deery identified the three reasons why he considered the Special Care Unit to be a care home. First, he said that the patients had been through the hospital system, and had been discharged into an appropriate setting. Secondly, although they received medical treatment, this is a component of care. Thirdly, that he considered the patients to be stable and therefore beyond the point of acute rehabilitation.

Ms Booth in her Concluding Submissions submits that Mr Deery had proceeded on the basis that unless the Special Care Unit fitted into the pattern of a secure mental hospital, then it could not be administering medical treatment. We do not read Mr Deery's evidence in this way, although we do think that his evidence relied heavily on a health service model.

On behalf of the Appellant, we heard evidence from Dr M. Debenham. Dr Debenham has been a consultant in general adult psychiatry at Pembury Hospital, Tunbridge Wells, since February 2000. He said that he was a traditional psychiatrist and that he does not practice as an anthroposophical consultant. He told us that in about April 2000 he was appointed by "Raphael" to look after the psychiatric needs of its patients, initially to provide treatment primarily to patients in the Special Care Unit, although he stated that he has played an increasing role in providing treatment in the Medical Centre although his involvement there is less. He said that as he became more involved in the Special Care Unit he began to get requests to see people in the Medical Centre. He said that many of the patients there have a diagnosis of mental health problems as well as physical injuries.

We concentrate at this stage on his role in the Special Care Unit.

He stated that he works at least one session a week on a Saturday, and makes other visits, as necessary, so as to provide additional treatment.

He stated in evidence that his role in the Special Care Unit was a treatment role. He defined it as "a wider treatment role which involves sustaining the therapeutic environment on the ward." He said that he discusses all of the patients with the nurses every week, but that he sees the patients as well, although not every week. In some cases he sees the patients more often than once a week if they are going through a period where they need an increasingly active role from him. He is not involved in any of the alternative therapies. It was his opinion that there was a substantial difference between the way the patient presented before treatment and the way he or she presented now. In particular he said that "they are settled as they are because of treatment; they have a stability, although all of them are quite unwell; if they did not have treatment they would go backwards very quickly; if only care were to be provided, they would survive for a little while but go back down quickly".

Dr Debenham gave evidence about some of the patients in the Special Care Unit. For example, two of them displayed particularly aggressive and challenging behaviour at first, and bruises were apparent every week. Both of these patients were very unpredictable. However, he suggested that this has now changed. There are no more assaults; although both are still psychotic and difficult to manage.

He drew the distinction between a care home and a hospital. In a care home he suggested that they would not be able to cope with such behaviour and the people would become more disturbed. In a hospital setting, which he said the Special Care Unit was, the nurses had acquired the skills to deal with the difficult behaviour. He made similar points in relation to a patient who has persistent suicidal ideas, and a patient who hears birds that tell her to jump out of the window.

The thrust of Dr Debenham's evidence in relation to the Special Care Unit is that it provides both care and treatment, but the emphasis is on treatment. He stated in evidence that he occasionally visits in care homes, but not frequently and that in a care home, treatment is provided by the community mental health team of which he is a part. In contrast, he said that in the Special Care Unit, he provides the treatment as part of the Raphael team. He described the treatment he provides as active treatment. He suggested that some of the patients had reached the point where they could be now moving on if there was somewhere to move them on to. In so far as his evidence about the patients conflicts with the observations of Mr Deery, we prefer the opinion of Dr Debenham. He knows his patients, and when he says that some could be moving on, we accept this as the correct position.

The Respondent has sought to suggest that Dr Debenham cannot be said to be giving treatment to the patients at the Special Care Unit because he does not have a specialist qualification in rehabilitative psychiatry. It is true that he does not have specific accreditation as a rehabilitation psychiatrist, but he has worked in a rehabilitation unit at Bexley Hospital. We have seen a letter from Oxleas NHS Trust dated 27^th August 2004 confirming that Dr Debenham worked there as a Specialist Registrar in Rehabilitation between 1^st October 1998 – 30^th September 1999. We agree with Ms Booth's submission that the exact nature of the qualification possessed by Dr Debenham should not be the focus of our attention. We must concentrate on whether Dr Debenham is offering and providing medical treatment.

The Respondent relies on the statement and evidence of Dr L. Measey (tab 58 pp 426-483). Dr Measey is a Consultant Psychiatrist with a specialist interest in psychiatric rehabilitation. He is now retired, but he continues to act as an advisor in matters concerning continuing care programmes for persons with chronic psychiatric disabilities and he continues also to be involved in giving regular lectures and seminars at national, regional and local levels on topics dealing with rehabilitation psychiatry.

Dr Measey visited the Special Care Unit on 20^th November 2003 and his first report is dated 1^st December 2003 (pp 438-442). He described the patients as follows: "All the current patients were in long stay wards of Psychiatric Hospitals before transfer to the Special Care Unit, many of them coming from former London mental hospitals that have subsequently closed…They appeared to be capable of engagement in rehabilitation activities though this would demand considerable personal supervision." On the basis of his visit, reading the dossier of papers prepared by the Respondent, and conducting interviews with Dr Debenham, Dr Florschutz, and the nurse manager of the Unit, he concluded as follows: "The Special Care Unit is comparable to an Independent Sector Care Home with Nursing for patients with chronic psychiatric disability. It performs this task with thoughtfulness and kindness with an emphasis on personal development, which has resulted in the improvement of the patients' lives and behaviour".

He gave 6 reasons why it fell short of the "standard that would be expected of a Psychiatric In-patient Rehabilitation Unit."

• The lack of specialist psychiatric rehabilitation training of the staff

• The absence of any effective assessment tools

• The lack of dedicated cognitive behavioural management programmes: usually supervised by a clinical psychologist

• The absence of evidenced based care approach

• Poorly co-ordinated multi-disciplinary working practice resulting in full assessment of needs with an individual care programme to address those needs

• No effective evaluation of inputs and therapies used on individual patients

For all of these reasons, Dr Measey concluded that the Special Care Unit should be classified as a Care Home.

He provided an addendum to this first Report, dated 12^th December 2003, where he distinguishes habilitation from rehabilitation, which he considers to be crucial. He defines psychiatric rehabilitation as "the active therapeutic process whereby a patient engages in a therapeutic regime under medical supervision." The result, he says, is a discharge plan that allows patients to function to the best of their capacities and with strategies to cope with their disability. In contrast, he defines habilitation as "the process of enabling a patient to enjoy the optimum amount of social well being of which they are capable". He clarifies his first Report by stating that all six of the elements would need to be present to demonstrate the existence of an independent hospital. He writes; "These elements would evidence the presence of an active therapeutic process which are required in rehabilitative care. The failure to provide these elements of active intervention is indicative of a habilitation service."

We have seen the RCPsych Council Reports on Rehabilitation entitled "Psychiatric Rehabilitation – Revised" (CR46) dated March 1996 (pp 450- 460) and "Rehabilitation and Recovery Now" (CR121) dated January 2004 (pp 462-483). These Reports, in which Dr Measey has played a leading role as initiator and in going through the various drafts, provide a helpful framework within which Dr Measey writes his Reports on the Special Care Unit.

He wrote a third Report on 21^st May 2004 (pp 447-448) in the light of our Findings on Law. He states, in paragraph 3: "it is my opinion that the treatment provided…is of two types. First is the maintenance of a medication regime, which in most cases was established before admission, with the object of preventing relapse of the original condition. Medication changes are made with the aim of securing that purpose. Secondly the limited psychological interventions are directed primarily in enabling persons within the Unit to adapt to the regime on the Unit and therefore to secure the benefits of the care regime." It is Dr Measey's opinion that neither of the activities is directed towards the goals identified by us in paragraph 29 of our Findings on Law. He distinguishes between activities with patients that have a therapeutic effect and those that are diversionary. He is firm in his opinion that the activities provided for the patients in the Special Care Unit are primarily diversionary.

His evidence is best summarised by the following, given in examination in chief: "A care programme is one where a patient is enabled to live to the maximum of their ability and their disability tolerated, understood and dealt with. Sometimes in that regime patients improve because good social care can, over a period of time, improve patients who have psychiatric disability."

Dr Debenham, both in examination in chief and in cross examination, was specifically asked to comment on Dr Measey's six reasons why the Special Care Unit does not operate as a rehabilitation unit. As to the first matter, the lack of specialist psychiatric rehabilitation of the staff, Dr Debenham's evidence was that there is one specialist nurse with experience in psychiatric rehabilitation although he was not able to confirm whether this person has a certificate.

Dr Debenham accepted the truth of the second point made by Dr Measey, namely that there was no assessment tool.

The third point related to cognitive behavioural management programmes. Dr Debenham disagreed with Dr Measey and stated in evidence that the Special Care Unit does operate cognitive behaviour management programmes although he agreed that these programmes are not in a separate section of the notes in relation to the patients headed "cognitive behaviour management plans." He accepted also that a clinical psychologist does not supervise the programmes, but that it is something he himself does working with the nurses. Dr Debenham was unable to help on the fourth concern, the absence of an evidence based care approach, because he said that everything that is done is evidence based. As to the sixth matter, Dr Debenham agreed with Dr Measey that impressions regulate progress rather than goals.

Mr McCarthy asked Dr Debenham to comment on the distinction drawn by Dr Measey between psychiatric rehabilitation and psychiatric habilitation. Dr Debenham said that he found it difficult to separate the two, but he said he thought that the Special Care Unit does both.

Both Professor McLellan and Professor Wade, in the joint report dated 13^th July 2004, defer to Dr Measey's position. The experts had identified four objective tests which we set out below:

• The characteristics and needs of the patients who are actually accepted for admission by the organisation

• The physical facilities, capacity and organisational structure of the Organisation

• The nature of the processes of rehabilitation and care actually delivered by the Organisation

• The outcomes achieved by patients while resident in the Organisation

Looking at the first of these matters, Professor McLellan and Professor Wade accepted the advice from Dr Measey that patients with severe chronic psychiatric illness would be long-term residents in a hospital only if their behaviour were such that the public would otherwise be at risk, and that this condition is not met in relation to the patients at the Special Care Unit.

As to the other bullet points, the joint report refers to the fact that Dr Debenham did not have specific training in specialist psychiatric rehabilitation and that he did not work in one of the 80 or so NHS units that are formally recognised and delegated as specialist psychiatric rehabilitation units. We have already commented on the fact that Dr Debenham's exact qualification should not be the primary focus, and to that extent these observations in the joint report are not helpful to us.

Dr Landham, the expert appointed by the Respondent disagreed with Dr Measey, and preferred to adopt the opinion of Dr Debenham as fitting into his own experience of working with other psychiatrists in his NHS Trust.

In her Closing Submissions, Ms Booth submitted that Dr Measey "has a clear view about psychiatric rehabilitation and that he is applying the criteria which he applies to that particular sub-speciality to the question of whether the Special Care Unit carries out medical treatment." She urged us to distinguish between what is required for accreditation as a specialist for higher medical training in a sub-speciality and in deciding whether medical treatment is being carried out. We agree with her that the test that we must apply is: "Is Dr Debenham carrying out medical treatment?" rather than "Is the Special Care Unit providing rehabilitative psychiatry?" It seems to us that Dr Measey both in his Report and in his evidence appears to be concentrating on the latter question.

What is critical for us is the reality of what happens at the Special Care Unit. Is it simply "maintenance treatment" (which Dr Measey said was what primarily was being received by the patients in the Special Care Unit), or habilitation psychiatry (Dr Measey) or a mixture of both habilitation and rehabilitation (Dr Debenham)?

Dr Measey asks the question: "are the residents receiving acute active and proactive treatment on a time-limited basis in order to effect a cure, a remission or a substantive alteration of their management regime?" He says that they are not and therefore the Special Care Unit is not a hospital. We consider that this is too narrow a question to ask when considering the meaning of "medical treatment." We do not accept that the absence of a time-limited goal, or perhaps the presence of a long-term rather than a short-term goal, moves the intervention from "medical treatment" to "long term management." Dr Measey would appear to accept that there is a "grey area" which is "about the adjustment [to] long-term management."

Dr Landham said in evidence that the Special Care Unit was in his opinion providing sorely needed rehabilitation for patients who would otherwise be in mental hospitals. He said that the patients admitted to the Special Care Unit needed active treatment, and that it was this intervention and treatment that made the difference between the Special Care Unit and a care home. Mr McCarthy urges us not to adopt the view of Dr Landham on the basis that he is not a psychiatrist and he does not have a sufficient knowledge base on the client group or range of available registered services. In reaching a decision in relation to the Special Care Unit, we have placed only limited weight on the opinion of Dr Landham for the reasons submitted by Mr McCarthy.

CONCLUSION ON THE SPECIAL CARE UNIT.

However, we have arrived at the conclusion, nonetheless, that the Special Care Unit has been operating as an independent hospital and should be classified under the 2001 Regs as IH (MH). We do so, for the following reasons:

• Dr Debenham presented powerful evidence that he provided the patients with medical treatment, that they needed his treatment, and that it is his combination with the nurses that is maintaining them in a state whereby they are not having to be in a mental hospital.

• When Dr Measey was asked whether he disagreed that Dr Debenham was providing medical treatment, his reply was "No I wouldn't" although he clarified this by adding "Well of course it depends." When asked whether he would agree that maintenance treatment is medical treatment, he said "well yes under the broad definition of medical treatment any regime which tends to create abnormal physiology, which is prescribed by a doctor [is] medical treatment." We detect from these answers an element of hesitation that suggests that Dr Measey is not as fixed in his opinion as his written Report would appear to suggest.

• Dr Measey said that the use of evidence-based assessment tools, and the effective evaluation of inputs and therapies being used on individual patients, are both virtually mandatory in a specialist rehabilitation unit such as University Hospitals. When asked whether the absence of assessment tools moves it out of medical treatment, his answer was "it is certainly not medical treatment called psychiatric rehabilitation. It is something else." It is our view of Dr Measey's evidence on this point that he is not denying that the lack of an assessment tool or the use of impressionist assessment prevents Dr Debenham's work with the patients from being called medical treatment; simply that it is not medical treatment called psychiatric rehabilitation. He defines it as "level five (the lowest level) of what we now regard as being good evidence"; and therefore within the spectrum, in our view, of medical treatment.

• It is our view also that there is a middle category between acute intervention on the one hand and plateau maintenance management on the other hand. The first category is clearly treatment; the latter category is clearly care. In the middle of these two areas, it is our view that medical treatment is required as the essential prerequisite to bring the individual towards the plateau where treatment becomes subsidiary to care rather than the reverse. Dr Measey accepts that there are grey areas that he calls "the adjustment [to] long-term management." It is our finding that the patients described by Dr Debenham fall into this category. His work with these patients involves improving their mental state so that they would be able to move on to independent living. Indeed, the evidence we have seen shows that there have been more discharges in the last five years than the number that Dr Measey presented in his report (3).

• Dr Measey was concerned about the lack of co-ordination within the multidisciplinary practices, and the associated problems with record keeping. These are matters about which we have been told the Appellant is giving attention. It is our view that defects in this area do not go to the substance of the question that we have to address, but rather to standards that perhaps have not yet been achieved.

The Raphael Medical Centre [54] NC

We heard evidence on the Medical Centre from the following; Professor McLellan, Dr Landham, Dr Forschutz, Dr J Moerchel, Mr M. Hope, Professor D. Wade and Mrs D Grassie. We have also read a witness statement from Dr T. Hashmi.

Professor McLellan concluded in his first report that the Medical Centre "is correctly designated as a Nursing Home." He gave four reasons for this conclusion (tab 53 p 325). First, the current nature of the specialist medical input; secondly, the relative lack of conventional physiotherapy, occupational therapy, and in particular clinical psychology; thirdly, the fact that the systems of clinical governance including audit and documentation are still in an early and transitional stage of development; fourthly, the prominence of the lay Director (Dr Forschutz) in influencing the day to day range and nature of the treatments delivered to individual patients. He did say however that "it occupies an intermediate position in the categorisation system and once the ongoing developments there have been established and consolidated, and the patterns of clinical practice and responsibility have thus become clearer, its registration status should be reviewed." In the letter to the Tribunal dated 17^th September 2003 (tab 55 p 334), Professor McLellan makes clear that his Report was based on a relatively brief visit, and relied crucially upon the information provided by members of staff and from a brief perusal of some case papers. His second Report written on 23^rd April 2004 (tab 56 pp 337 ff) arrives at a different conclusion. He writes "In my opinion, based upon the evidence set out in my initial report the main purpose of [the Medical Centre] is to provide medical treatment and rehabilitation and an ancillary purpose is to provide care." Importantly, he states: "In the absence of the current guidance [the Findings on Law] I concluded in my original report that the Medical Centre was not functioning to standards that would be acceptable in a UK hospital and for this reason was not a hospital. However, this is a matter that I should have left to the appropriate monitoring authority to determine since the question I had been asked was whether its functions were those of an independent hospital, not whether as a hospital it met the professional standards demanded in an NHS hospital."

Attached, as a Document to this Report is the paper entitled "Medical Rehabilitation for People with Physical and Complex Disabilities" published by the Royal College of Physicians in May 2000 and in which Professor McLellan is one of four authors. Paragraph 2.4 states that the term 'rehabilitation' encompasses recovery, maintenance of function and prevention of avoidable complications. Professor McLellan, in this Second Report, draws on this paper to state that the functions of the speciality and the treatments that it employs are clearly regarded by the College as medical functions and treatments.

Professor McLellan reverts to his earlier position subsequent to the Joint Meeting of the experts. There was agreement between the experts that the mission statement identified the Centre as a hospital providing Specialist Neurological Rehabilitation. It was agreed also that most of the patients at the time of their admission to the unit had medical conditions and rehabilitation needs justifying and requiring hospital treatment in a Specialist Neurological Rehabilitation unit, and that most if not all had probably been admitted on the assumption that such needs would be met. The experts agreed also that the basic physical facilities would be consistent with a hospital unit.

Professor McLellan and Dr Wade considered that the organisational structure did not meet the requirements expected in a hospital, and that these shortcomings were such as to prevent the Centre from delivering effective specialist rehabilitation to the patients who were resident as would have been expected in a hospital unit.

It is our view that the question of how best to deal with the perceived shortcomings is one of the key issues in deciding the classification question. Ms Booth in her closing submissions accepts that if the evidence shows a total failure to provide treatment to the patients, then the mere fact that the Centre purports to do so would not be sufficient. She continues, however, that by the same token, it is not every failure to meet every standard of performance that justifies overturning the declared purpose. Ms Booth submits that the task of the Tribunal is not just a paper exercise, it is to judge the reality of what is going on and if that reality shows that the main purpose is to treat these patients, not just care for them, then the test is fulfilled. We agree that this is the test that we must apply.

Professor McLellan, in his evidence on the admission process, agreed with Ms Booth that the evidence he had seen emphasised that clinicians were involved in the admissions process, and that the 2002 brochure that gave a different picture to that extent was misleading. The patients that he saw were "slow stream" rather than PVS patients or minimally conscious state patients. These patients would need specialist rehabilitation help, certainly more than a PVS or minimally conscious state patient. It was his evidence that the balance between therapy and nursing would depend upon the individual patient. He did say that he recalls that there were about three PVS patients at the Centre when he visited

He was told of weekly meetings and three monthly reviews. He said in his evidence that he remembered seeing evidence of reports to funders, although it was his opinion that these reports were inadequate.

We have looked at Professor McLellan's evidence as a whole; that is the two reports, the joint report, and his evidence before the Tribunal. We conclude that Professor McLellan's final position is that he believes that the patients receive both care and medical treatment and of course rehabilitation. He concluded that for most if not all of the patients, medical treatment is a component of care rather than care being subsidiary to medical treatment. We believe that Professor McLellan's final position has been influenced to a very large extent by the view of Professor Wade and we are bound to say we take account of what Professor McLellan said in his evidence in that light. It is Professor Wade's evidence that we believe is the most supportive of the Respondent's position.

The only other evidence presented by the Respondent is that of Mrs D. Grassie, who works for the Healthcare Commission as a Professional Adviser on Strategic Policy and Professional Practice (tab 59 pp 484-500). Her visit on 26^th September 2002 was at the request of the Appellant in order to provide a private and voluntary healthcare view to support him in his desire to have the Centre registered as an independent hospital. Dr Florschutz was with her throughout the visit. She did not see any documentation in advance of the visit. She said in evidence that she saw a very tranquil, non-active, non-busy environment which she found both surprising and very different to her experience in other neurological rehabilitation settings she is familiar with.

Dr Florschutz made criticisms of the visit and of the subsequent Report in a letter to his Solicitor dated 4^th December 2003 (tab 33 pp 258 ff). We heard criticisms also from both Dr Landham and Dr Moerchel about Mrs Grassie's view of the management of spasticity. Without going into details about her Report, which was based on a relatively short visit of about three and half hours, we are bound to say that we agree with Ms Booth's concerns. Ms Booth says of Mrs Grassie's evidence "the evidence of Mrs Grassie having made such a general inspection with no in depth study of the treatment rather than the physical appearance of the facility, is of limited use to the Tribunal."

Professor Wade visited the Centre on 10^th May 2004 and was there for five hours. His Report is dated 13^th May 2004 (tab 57 pp 392-425). He discussed the work at the Centre with Dr Florschutz, walked around the Centre incidentally meeting some patients and members of staff, and then interviewed Dr Hashmi (the GP who was at that time the resident medical officer), Mrs Wonnacott (one of the senior team leader nurses), and Mrs Hancock (the nurse responsible for initial assessment visits and for clinical governance). He read through six sets of patient notes, four being current and two being old.

He was informed that almost all of the patients currently at Raphael had a neurological disorder and that most of them had acquired brain injury. At paragraph 4.4 of his Report he states that "I saw and met a few patients incidentally. They varied from patients who were certainly in the low awareness state, if not in the permanent vegetative state through to patients who were clearly mobile but confused and sometimes irritable, and also including patients who were not particularly disturbed but had significant motor impairment."

Professor Wade refers to the admissions process, with the lead being taken by Mrs Hancock (the nurse responsible for assessment visits and also for clinical governance), and the information being presented at a Wednesday meeting. He says at paragraph 6.4 "Over the first two to three weeks the patient is assessed by various members of staff, and at the Wednesday afternoon meeting in the third week, attended by all staff, and chaired by Dr Florschutz, the findings are discussed." Individual action plans are made by the individual therapists, and the patients are reviewed approximately three monthly. He states that the resident medical officer (who at that time was Dr Hashmi) will see the patient on most days to monitor any disease process that needs monitoring and any treatment that the patient is on. He refers to the visiting doctors from Germany, although he states that their role is staff training. He refers also to input from Dr Fordham (a local consultant neurologist), Dr Kauffman (a retired consultant in rheumatology and rehabilitation) and Dr Debenham who he says gives advice when needed.

At paragraph 10.5 of his Report he states that before he can give his opinion he wishes to clarify his approach. He states that the definition of an independent hospital in the Care Standards Act "is a bad definition, leaving many questions open." He states that he does not intend to discuss the issue in his Report, "accepting that it is not my position to do so." He attaches as an addendum to his Report a further document that does discuss a method for determining whether or not an institution is a hospital. Although Professor Wade concludes that the Medical Centre is correctly classified as a care home, his criticism of the statutory definition illustrates in our view that he has struggled as much as Professor McLellan at arriving at a concluded view. Indeed, in answer to Mr McCarthy's question whether there was anything that distinguished Raphael from care homes, he replied "I think the thing that makes it different…is that it tends to accept patients directly from hospital who need rehabilitation, whereas most care homes would probably not be referred such patients and would not accept such patients."

Professor Wade's all-important distinction however is between "doing something where you expect to change things in a sustained way" and "providing longer-term support." But he acknowledges at paragraph 10.19 of his Report that "although a clear distinction can be drawn between treatment and care, it has to be acknowledged that in patients with severe neurological damage the processes are not easily distinguished….it is in practice difficult to determine when the process of active treatment becomes relatively minor, and the process of providing supportive care becomes the major component of an individual's health care." The distinction between active neurological rehabilitation which is medical treatment and a lesser level of dealing with rehabilitation patients which is care, identified by Mr McCarthy in his Response to the Appellant's closing submissions, is in our view a distinction that is not only not easy to make, but is also one that will vary from patient to patient and may change with the continuing development of knowledge in this field.

His Report contains a review of his perusal of the six files referred to above. He has ten specific criticisms of the files. It would seem that Professor Wade reaches the conclusion he has done because of gaps in the documentation. For example, there are no long-term goals documented and there is no discharge planning evident. But, in addition and in support of his view, he says that many of the activities undertaken such as art therapy etc are related to ensuring a continuing quality of life and giving good care and are not therapeutic in the context of neurological rehabilitation. In contrast, the Appellant's argument is that the therapies are an integral part of the medical treatment provided by the Centre. Whilst not a central issue in this case, we tend to prefer the views expressed by those who have worked at the Centre, such as Dr Moerchel and Dr Debenham, both of whom argue strongly that the therapies are an aspect of medical treatment in the context of the Raphael Centre.

Professor Wade states also that the prolonged length of stay of some of the patients, especially in the minimally aware state, would also tend towards finding Raphael to be a care home. Thus, to adopt the terminology of Mr McCarthy in his Response to the Appellant's closing submissions, unless slow rehabilitation meets a certain threshold level of aim, content, focus and personnel it is not medical rehabilitation.

We heard evidence given by Dr J Moerchel (tab 66 pp 676ff) and have read the witness statement of his predecessor in post, Dr T. Hashmi (tab 64 pp 566ff). Neither of these doctors of course was in post in 2002. The Appellants state that nevertheless the evidence of these doctors provides realistic evidence of what was in fact going on at the Centre in 2002 and even before then. The Respondent's view is that the staffing profile and presentation underwent changes after the adverse classification decision. Whilst it is true that the presence of Dr Hashmi, and now Dr Moerchel is important for the continuing development of the Centre, we are aware of the turn over of staff since 2002. Prior to Dr Hashmi, there was a resident GP from Monday to Friday, and between April 2002 and March 2003 we understand that Dr Kaufmann was still in post as a specialist in rehabilitative medicine. A Dr Morvay was in post at the time of Mrs Grassie's visit in September 2002.

Both of the doctors provide detailed information about the formal case conferences, based on multidisciplinary team work, that take place on the Wednesdays, and how they direct the nurses in the same way as they would do on a ward round. Dr Hashmi states that as far as he is concerned there are goals set for all patients and these are documented. He states also: "It is my medical opinion that the prevention of deterioration may in certain cases be truly regarded as treatment within any medical context, maintenance therapy in a vast range of chronic diseases follow this paradigm." Dr Moerchel stated that he set short, medium and long-term goals for all patients. Interestingly, Dr Moerchel gives information about a patient JO who, as a result of rehabilitative treatment is now communicating once more. He said that it was his view that two thirds of the patients were undergoing active therapy. We agree with the view submitted by Ms Booth that patients such as JO, and the tracheotomy patients are other examples, need more than the service of an external GP. The evidence we have seen points to a GP being a member of staff for many years, and certainly in 2002.

We obtained considerable assistance from the evidence of Mr M Hope. Mr Hope is qualified as a social worker. He was the brain injury co-ordinator for the Raphael Medical Centre from April 2003, although since June 2004 he has been the Acquired Brain Injury Co-ordinator for East Sussex and Brighton and Hove Social Services Departments, jointly funded between the Social Services Departments and the PCTs. We felt that Mr Hope came to the issue very much as a down-to-earth practitioner. He admitted that he doesn't have the appropriate qualifications, but what he did have was quite a wide range of experience in the needs of people requiring neuro-rehabilitation, the needs of people with acquired brain injury. He says in his witness statement (tab62 pp554 ff) that since 1982 he has come to distinguish between those types of establishment that simply provide care and those that can provide rehabilitative treatment. He said that the vast majority of placements at the Centre are made by PCT's and that it is his opinion, from discussions with PCT's, that they place patients at Raphael Medical Centre on the basis that they receive rehabilitative treatment. He stated that this is funded normally by the Continuing Healthcare budget and that the PCT's would expect evidence of improvement to be provided at regular intervals for this funding to be ongoing. Some PCT's visit after four to six weeks and look at work in progress. He stated that rehabilitation works best through a multi-disciplinary team, and that although traditional medical hierarchies work very well in acute services they work less well in neuro-rehabilitation. We were struck by Mr Hope's point that referring agencies were invariably not looking to place people at the Medical Centre for long-term nursing care because apart from anything else, it would be expensive to use this facility for long-term nursing care. In value for money terms, the referring agencies would be getting a very bad deal. This point seems to us be of considerable significance.

Mr Hope explained that there are two areas where the Medical Centre seemed to do well. First, there is the area of people with profound brain injury, where there is the hope that some progress might be made but quite a strong expectation that little progress will be made in actual fact. He gave by way of illustration the example of AP; a young woman aged 20 admitted on 9^th October 2002 who is diagnosed with Hypoxic Brain Injury (tab 61 p 553). The PCT is the funding authority. Mr Hope made it clear that a patient such as AP could not be appropriately referred to a care home with nursing. It was his view that Raphael provides the basis of neuro-rehabilitation and it works with the patients such as AP so as to maximise their potentialities and achieve greater independence. The second area is of people who have had some prior rehabilitation elsewhere but for whatever reason that rehabilitation has not worked.

Mr Hope said that there were areas where he would recommend that a person does not go to Raphael. First, for people who have the capacity to make at least physical progress and become physically a lot more functional within quite a short period of time (may be six months). He felt the NHS units do best for those people. The second area where Mr Hope believed Raphael was not appropriate is for people with very extreme behaviour; people who were verbally challenging and aggressive and also physically violent. He would send such people to a specialist neuro-rehabilitation unit that has a secure environment and where the unit can work on ways to minimise the behaviour, before starting on rehabilitation.

Mr Hope was able to help us about admissions policy and the Wednesday team meetings. He said that multidisciplinary recommendations to admit patients were often discussed in course of the Wednesday meetings, and in some cases the doctor went to assess the patient "as part of the pair of people", the other assessor being Mrs Hancock. He said also that he was involved in some cases in joint assessments as to whether or not a patient should be admitted.

We turn now to consider the evidence of Dr Landham. His Report is dated 21^st June 2004, and is based on visits made to the Centre on 9^th June 2004 and 17^th June 2004. He met Dr Florschutz, Dr Hashmi, Dr Moerchel, and Dr Debenham. He states that he also conducted a telephone interview with the Speech and Language therapist on 18^th May 2004. He had available to him the Reports by Professor Wade and the two Reports of Professor McLellan. He states in his Report that he interviewed all the members of the multidisciplinary team. He states also that he was able to read through the general case records of several patients, and he spoke briefly to some patients. He reported that it was his view that the Centre maintained multidisciplinary notes with both short-term and long-term goals well documented and reviewed regularly. He comments positively about referral and initial assessment, about the regular Wednesday meetings, about follow up meetings, and the appointment of a discharge co-ordinator. He states that the patients are seen regularly by the resident Medical Officer, and an attempt is made to measure clinical outcome using specific functional independent measures, for example FIMFAM.

On the negative side, he states that there is little evidence of clinical governance or clinical audits. He states that general documentation of medical and nursing interventions "are recorded reasonably satisfactorily." It is his view that although a Consultant in Rehabilitation usually provides leadership in the NHS context, it is not essential that it should always be led by a Consultant. He makes a number of recommendations for improvement, the most important we see as being the recommendation that the Centre purchases one or two sessions of the services of a Consultant in Rehabilitation Medicine.

Dr Landham remained firm in his view that the Centre was an independent hospital, notwithstanding the views of Professor Wade and the change in approach of Professor McLellan as identified in the joint Report. Dr Landham's views in the dissent from the joint Report are primarily as follows:

• The therapy available is adequate considering the nature of the patients admitted (i.e. those suitable for slow track rehabilitation and subsequent maintenance programmes)

• It is not essential to have Consultant supervision.

• The shortage of nursing home places is an important source for discharge delays.

Dr Landham confirmed his conclusions and his reasoning in his evidence to us. Mr McCarthy asks us to treat Dr Landham's evidence with caution. He states that Dr Landham was prepared to overlook the deficiencies in the Centre because he sees the Centre as an important local resource and he took a relaxed attitude to the aims of the establishment. Indeed, Dr Landham has sent patients with minimum awareness status to Raphael in the past, and he confirmed that he would send a patient to Raphael for slow track rehabilitation, to be treated actively. In effect, Mr McCarthy states that Dr Landham has applied a locally based welfare test and that we should be guided by the greater expertise and experience of Professors McLellan and Professor Wade who have both extensive academic experience and are independent of locally based considerations.

Whilst we of course recognise and acknowledge the academic and research distinction of the two Professors, we have to say that Mr McCarthy's argument is weakened by the fact that Professor McLellan has changed his mind twice, and the fact that Professor Wade's visit and perusal of all the documents was much less thorough than Dr Landham. Dr Landham provided us with a realistic assessment. We have no way of knowing whether his experience, based of course on West Kent, is the same as elsewhere in the country. We did not gain the impression, however, that Professor McLellan and Professor Wade necessarily had a better overall picture of the country as a whole.

CONCLUSION ON THE RAPHAEL MEDICAL CENTRE

We have arrived at the conclusion that the Raphael Medical Centre has been operating as an independent hospital and should be so classified under 2001 Regulations as IH for the following reasons:

• We are persuaded by the Report and evidence of Dr Landham that although there are many defects in the maintenance of documents, in a system of clinical governance, in the absence of a Consultant in rehabilitation medicine; these defects go to performance and standards rather than to removing the reality of what actually happens, from treatment to care.

• We felt that the view of Professor Wade and the final position of Professor McLellan was based too heavily on an academic emphasis of an ideal, and gave too little regard to the realities of what actually can be achieved with less than perfect resources.

• In particular, when in the joint Report the two Professors consider that the shortcomings were such as to prevent the Centre from delivering effective specialist rehabilitation to the patients who were resident as would have been expected in a hospital unit, this ignores the evidence we heard from Mr Hope and Dr Moerchel, in particular, of what actually has happened to particular patients.

• We think it wrong to make a qualitative judgement. These are matters for the Regulator.

• We note what is said in the Royal College of Physicians Paper (May 2000) that rehabilitation encompasses recovery, maintenance of function and prevention of avoidable complications. In looking at all the evidence in this case we have concluded that this is exactly what the Medical Centre admits patients for (as accepted by all of the experts), what it has always purported to do as its main purpose, and what it has indeed achieved. The main purpose is to treat the patients who are admitted; not simply to care for them.

ORDER

We conclude therefore, applying the legal test as set out by us in the Findings on Law incorporated in this Decision and annexed hereto, that both establishments were operating in 2002 as independent hospitals and should have been classified accordingly. Thus, we allow both of these appeals and direct that both establishments be registered as Independent Hospitals.

Our Decision is unanimous.

APPEALS ALLOWED

His Honour Judge David Pearl

(President)

Dr S. Kumar

Dr C. Treves-Brown

6^th October 2004.

APPENDIX A

FINDINGS ON LAW

Background

The applicant has appealed from the determination of the Respondent made under the Care Standards Act 2000 (Commencement No. 9 (England) and Transitional and Savings Provisions) Order 2001 (SI 2001/3852) to grant registration of both the Medical Centre and the Special Care Unit as Care Homes. The applicant submits that both establishments should be registered as Independent Hospitals.

The Tribunal has jurisdiction to deal with this matter by virtue of Paragraph 5(6) of Schedule 1 to the Order, which states that "any determination of the Commission under this sub-paragraph shall for the purposes of section 21 of the Act (appeals to the Tribunal) be treated as if it were a decision of the Commission under Part II of the Act".

The Tribunal, with the agreement of both parties, decided that the hearing in this appeal should be split between submissions on the law, and the presentation of the evidence. Accordingly, the Tribunal heard legal argument on the 10^th February 2004. The Applicant was represented by Ms C Booth QC instructed by Lester Aldridge, Solicitors and the Respondent was represented by Mr R McCarthy QC instructed by Bevan Ashford, Solicitors.

The issues that the Tribunal sought assistance from leading Counsel were as follows:

• The legal test that should be applied to decide whether each of the two establishments properly fall within s 2(3)(a)(i) of the Care Standards Act 2000 (an independent hospital) or s 3(1) of the Care Standards Act 2000 (a care home).

• The qualifying operational time or period of time at which the establishments have to be fulfilling the statutory test to be entitled to transfer to Care Standards Act independent hospital registration. The Tribunal has already considered this matter on the basis of written submissions from the solicitors representing the parties, and it issued Directions on this matter on the 29^th October 2003. There is therefore a secondary issue arising out of this question, namely whether the Tribunal can reopen these findings and if so on what basis.

• Is there an operative burden of proof?

It is agreed between the parties that it is the first of these questions that is the most important, and indeed there has developed a substantial level of agreement, although not complete agreement, between the parties on the other legal matters. It is therefore to the first question that we turn.

The Legal test of 'Independent Hospital' and 'Care Home'

6. Section 2(3) of the Care Standards Act 2000 states:

'Hospital' (except in the expression health service hospital) means –

(a) an establishment –

(i) the main purpose of which is to provide medical or psychiatric treatment for illness or mental disorder or palliative care;

(ii) …

Section 121 (general interpretation etc section) states that 'medical' includes 'surgical', and 'illness' includes any 'injury'. 'Treatment' includes diagnosis.

Section 3(1) defines a Care Home as "an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons."

Section 3(2) then sets out the four categories of persons; namely (a) persons who are or have been ill, (b) persons who have or have had a mental disorder, (c) persons who are disabled or infirm, and (d) persons who are or have been dependent on alcohol or drugs.

Section 3(3) makes clear that some establishments are not care homes. The wording of the Statute reads as follows:

But an establishment is not a care home if it is –

(a) a hospital

(b) an independent clinic; or

(c) a children's home

or if it is of a description excepted by regulations.

Mr McCarthy QC, both in his written submissions and in his oral presentation before us, stated that the language of the Act is straightforward and that any temptation to improve on the words "by adopting a gloss or by importing concepts from other statutes should be resisted". He submitted for our consideration a document headed "Advice on the Meaning of 'Independent Hospitals' in the Care Standards Act 2000" that he had prepared for his instructing solicitors. He said that this was a "neutral document."

Both Counsel addressed us the meaning of 'main purpose' as used in the Care Standards Act 2000. It is our view that the answer to this question is indeed the key to question.

Mr McCarthy QC made the following submission, taken from the document "Advice on the Meaning of 'Independent Hospitals'.

"1. Main Purpose. This term is not defined by the CSA and it is therefore appropriate to take a common sense approach which employs an ordinary use of language.

2. Synonyms for 'main purpose' would be the majority or predominant purpose of the establishment or most of its activity. The estimation and identification of a main purpose requires a comparison to be made between the importance and the extent of medical treatment and the range of other activities and services provided at the establishment. It is therefore necessary to identify the activities which do not come within the term and to compare their extent with that of the medical or psychiatric treatment (as the case may be).

3. The purpose of an establishment may vary from time to time (although this would be limited according to the service user group). A reasonable period of time should normally be used to measure the main purpose…."

In his submissions to us, Mr McCarthy QC pointed to the fact that Parliament had defined 'main purpose' in the singular and that only if we were to decide that the main purpose of an establishment was to provide the services as set out in s 2(3) could the establishment be registered as an 'independent hospital'.

Ms Booth QC drew our attention to the case of Glasgow Corporation v Johnstone and others [1965] AC 609 [HL]. This case of course dealt with an entirely different area of law, but we are ourselves persuaded that considerable assistance can be obtained from the speech of Lord Reid at p 621 where he considered the meaning of 'wholly or mainly':

"…there is nothing to prevent a charitable organisation from conducting activities which are not wholly ancillary to the carrying on of its main charitable purpose."

Both Lord Evershed at page 624 and Lord Hodson at page 628 referred to a particular factual situation as being incidental (although in the circumstances of that case, particularly useful) to the primary purpose.

We have formed the view that the approach taken by the House of Lords in Glasgow Corporation v Johnstone and others has a wider significance than simply the interpretation of the particular Statute that was in issue in that case. The Judges were considering the meaning of the ordinary words 'wholly or mainly'. It is our view that we should place on the words 'main purpose' the same meaning as the House of Lords in Glasgow Corporation v Johnstone and others. Thus, in the context of the Care Standards Act 2000, an establishment would be entitled to be registered as an 'independent hospital' if the main purpose fell within section 2(3) even though there may well be other activities that are "incidental" to the primary purpose, or even "which are not wholly ancillary to the main purpose."

Ms Booth QC placed considerable emphasis on what the establishment holds itself out to do. If it purports to hold itself out as providing primarily medical or psychiatric treatment then it should be regulated accordingly. Mr McCarthy QC disagreed with this approach, and emphasised in his own submissions that a label a provider chooses to use should not be a factor. We agree with Mr McCarthy QC on this particular point to the extent that what the establishment holds itself out to do, by itself cannot be a sufficient test. We see dangers in adopting such a subjective test. Nevertheless, there will be situations where a Mission (or Vision) Statement and the published documents of the establishment are of significance in enabling an objective assessment to be made. In the final analysis however we are persuaded that Parliament envisages an objective test.

Another pointer urged on us by Ms Booth QC is that the regime of inspection and regulation of an independent hospital is a stricter regime than that of a care home, and accordingly, in cases that fall on the borderline, there should be a presumption in favour of applying the stricter regime of an independent hospital if only to provide the residents with a greater protection. Mr McCarthy QC submitted that this approach was wrong and unworkable. Whilst we sympathise with the submission made by Ms Booth QC on this aspect of her argument, we believe that an objective test is best applied by straight forward and easily identifiable criteria.

Ms Booth QC may well be correct when she asserted that the more thorough inspection regime will "drive up the standards of care for amongst others the 800,000 patients using private hospital services" (to adopt the words of the Secretary of State during the Parliamentary debates on the Care Standards Bill; Hansard 18th May 2000 column 481). However, this may not always be the case, and there may be circumstances when the care home regime will be more beneficial. The point is, and we agree with Mr McCarthy QC on this, that these are factors that do not play any part in the decision making exercise surrounding whether an establishment is an independent hospital.

The major disagreement between the parties in the wording of the Advice submitted by Mr McCarthy QC surrounded the role of medical practitioners. The advice reads:

"It is important to identify the extent and nature of the precise role of medical practitioners who are employed or contracted to the establishment. External practitioners (i.e. those who are not employed by the establishment) should not for the purposes of a CSA decision be counted because they are not part of what the establishment itself provides. If medical services are provided by other establishments or by the NHS then they are not to be included as part of the treatment provided by an independent hospital.

It is essential to identify the extent and nature of the precise role of medical practitioners in the establishment:

How many medical practitioners are employed by or contracted to the establishment?

How many hours do they work?

What type of input do they provide (i.e. Do they merely provide advice or do they assume clinical responsibility for patient's treatment)?

Is their work an intrinsic part of the establishment's service or is it provided on an occasional/ad hoc basis?

Do they provide on call cover?

What proportion of patients is provided with what services?

Ms Booth QC submitted that this approach was incorrect. She argued that it should not matter that the medical practitioner is not fully contracted, that the definition should be based on a complete package, and that there is a danger of being too prescriptive. It was Ms Booth QC's submission that the "tick box" approach is dangerous.

We agree with Ms Booth on this issue. The Care Standards Act does not impose the obligation on the establishment that is advanced by Mr McCarthy. We can envisage many circumstances where medical treatment is provided by an external consultant or a General Practitioner who is on call, and that this arrangement is the most appropriate in the particular situation of the establishment. That should not remove it from the definition of an Independent Hospital. The question, and indeed the only question, is this: Is the main purpose to provide medical or psychiatric treatment rather than simply to provide accommodation? The number of hours provided by a medical doctor who is contracted to the establishment should not in our view be determinative.

We bear in mind two points here. First, the fact that medical science is moving fast and non medically qualified personnel may now be giving treatment, on instructions from the doctor, whereas even a few years ago this would have been thought totally wrong. Secondly, the medically qualified personnel are part of a team, and there is likely to be considerable co-operative working.

We turn now to Paragraphs 5-9 of the Advice on the Meaning of Independent Hospital. We understand that Ms Booth does not take issue with Mr McCarthy on these sections of his Advice, but that there was a question of emphasis and nuance that she brought to our attention.

The paragraphs read as follows:

5. Treatment is not the same as care and would normally mean an active intervention (which may be surgical or non surgical) to deal with illness

6. The question of whether treatment is medical depends upon whether it is an aspect of the science of medicine

7. Relevant factors in determining this include the qualifications of those who provide the treatment in question and the extent of involvement from registered medical practitioners

8. Treatment, which is normally provided by those who are not medically qualified, will not normally be medical treatment. The degree of direction of a qualified medical practitioner will, however, be a relevant factor

9. If decisions on the nature, extent and manner of any treatment require the knowledge of a registered medical practitioner, then this will be relevant.

Ms Booth agreed that medical treatment is an intervention that deals with illness, in the sense that it is hoped that there will be a positive outcome: "there will be a change for the better". The person may not be "cured" but the treatment will enable that person to progress and to reach a point where that person is "better" than before.

She drew our attention to the case of Minister of Health v General Committee of the Royal Midland Counties Home for the Incurables [1954] Ch 530 (CA). It is not necessary to deal with this case in any detail, and we accept of course the argument of Mr McCarthy that the case was dealing with a different Statute, but it is important to notice that neither Lord Evershed MR nor Denning LJ adopted a narrow view of 'treatment'. Denning LJ spoke of "treat[ing] persons suffering from illness by the exercise of professional skill." He contrasted that exercise with "tak[ing] care of them and mak[ing] life more comfortable for them."

In our view "treatment" falls within a spectrum. It can hope for a "cure"; it can hope for "rehabilitation"; it can be merely "palliative" in the sense that it removes suffering and pain.

We heard arguments on palliative care. If the main purpose is "palliative care," then an establishment can be registered as an independent hospital. However, it is not the applicant's case that the main purpose of these establishments is the provision of "palliative care." We have decided, therefore, that little would be gained by entering into the definition of palliative care at this stage, except to state that we are broadly sympathetic to Ms Booth's definition at paragraph 34 of her submissions. She submitted there that palliative care "would seem to be the active care of patients the primary aim of which is not to cure illness, injury, or mental disorder but to control and alleviate their symptoms (including pain), to improve the psychological, social, and spiritual aspects of the patient, and to provide the best quality of life to the patient."

Ms Booth QC at paragraph 35 of her submissions stated that "it is suggested that there is a graduation of medical treatment depending on the likely prognosis which covers total rehabilitation through partial rehabilitation through palliative care which improves a patient's quality of life to terminal palliative care all of which are covered by s 2 and the palliative end requires much less intensive consultant supervision than there would normally be found in a hospital." We take this to be suggesting that the fact that some palliative care in addition to "treatment" takes place does not prevent registration as an independent hospital.

We agree with this submission. The alternative would in our view be far too restrictive because it would mean that an establishment to be registered as an independent hospital would have to either provide as its main purpose "palliative care" (i.e. a hospice) or as its main purpose "medical or psychiatric treatment for illness or mental disorder". There are bound to be establishments that acknowledge that some of their residents fall within the palliative care regime and some who fall within the treatment regime. At any one time the percentages will change one way or the other. In our view it would be totally artificial to exclude an establishment that offers both.

We can summarise our findings in law on this aspect of the case as follows:

• The definition of 'independent hospital' is to be distinguished from a NHS Hospital as defined in s 128 of the National Health Service Act 1977.

• 'Independent hospital' for the purposes of the Care Standards Act 2000 is defined in section 2(3) of that Act.

• We have formed the view that the test is an objective test, and the Regulator responsible for registration must concentrate on the functions of the establishment

• The Regulator must look to the 'main purpose' of the establishment. There may be subsidiary, ancillary purposes, even purposes not wholly connected with the main purpose, but it is the 'main purpose' that determines whether the establishment is an independent hospital.

• As the test is objective, what the establishment calls itself or holds itself out as is not the key factor. It is of course relevant to see what the establishment says it does, but this by itself is not sufficient

• In considering the provision of medical treatment, the fact that medically qualified staff are not employed on full time contracts does not by itself prevent registration as an independent hospital. Context is paramount in this connection, and whereas a large number of beds may require full time contracts, there may be situations where part time and/or on call medical staff are more appropriate.

• In defining "medical treatment", we adopt paragraphs 5-9 of the Advice on the Meaning of Independent Hospitals submitted by Mr McCarthy QC and quoted above, with the rider that "treatment" should be given a purposive meaning so as to accurately reflect the fact that much of medicine today is administered by multi-professional specialist teams.

The Qualifying Operational Time

We have already made findings on this aspect of the matter on the 29^th October 2003, and it became clear during argument before us that both Counsel were agreed with the approach that we should now take.

At paragraph 16 of our earlier Direction we stated:

"Thus it is our finding on this aspect of the case that the decision facing us is different from both In re A Care Home[2002]32.NC and C v OFSTED [2002] 87EY line of authority. Are these establishments care homes or are they hospitals? The decision was taken on 28^th March 2002 that they were care homes. The decision was taken in the context of the transitional arrangements, and the appellant appealed. It is not seeking to extend the service user category of a care home. Rather it is seeking a decision from the Tribunal that these establishments fall within s 2 rather than s 3 of the Care Standards Act 2000. It is our view, absent any agreement between the parties on the matter that has not happened, that the appellant is entitled to a decision by the Tribunal on this matter. In reaching a decision, the Tribunal must consider the Regulation 13 Report and any subsequent independent reports that may be obtained by the parties. What weight we attach to these…reports is a matter for us having heard submissions."

If what has happened is that an establishment has undergone a radical and fundamental change since the date of the decision under the Transitional procedures, then quite obviously this could not be taken into account, and the establishment would have to make a fresh application. The Transitional Procedures cannot be used to circumvent the appropriate registration procedures under the Care Standards Act 2000. If however all that has happened is a gradual change in the various methods of treating residents during the period subsequent to the date of decision, then this would simply reflect the fact that knowledge and practice in this area does not stand still and new and innovative procedures are put in place within the context of a rapidly developing medical landscape.

We understand that both Mr McCarthy QC and Ms Booth QC are agreed that we must focus our attention on what was the situation in the establishments at the time of the transfer from the Registered Homes Act regime to the Care Standards Act regime. Given this broad level of agreement it is not necessary to consider whether as a Tribunal we could have departed from the approach we set out on 29^th October 2003,

For the benefit of future Tribunals that may be faced with this matter, however, we say that we prefer the view of Mr McCarthy QC to that of Ms Booth QC on this procedural point. We reached the view we did on 29^th October 2003 without the benefit of oral submissions, and made our findings in the context of Directions. We cannot see how these findings could be binding on us in the sense that we become functus officio.

The Burden of Proof

Although Ms Booth in her written submission submitted that the burden of proof is on and remains with the Respondent to justify its categorisation, it is our understanding that she is broadly supportive of Mr McCarthy's position that the function of a "burden of proof" is unhelpful in a case such as this.

Mr McCarthy QC submitted that the Tribunal has an inquisitorial role in these type of cases. We agree with him. The Tribunal must examine the evidence that is presented and then come to a view as to the appropriate and 'applicable' description on the basis of the evidence. We agree also that the statutory framework sets a precedence to the independent hospital description. The question we must ask is: Are these establishments independent hospitals? If they are not, then they must be care homes.

His Honour Judge David Pearl

(President)

Dr S Kumar

Dr C Treves-Brown

17^th February 2004.

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