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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> JF, R (on the application of) v NHS Sheffield Clinical Commissioning Group  EWHC 1345 (Admin) (02 May 2014)
Cite as:  EWHC 1345 (Admin)
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QUEEN'S BENCH DIVISION
1 Bridge Street West
B e f o r e :
| The Queen on the application of JF (by her litigation friend RW)
|- and -
|NHS Sheffield Clinical Commissioning Group
Neil Garnham QC and Jeremy Hyam (instructed by Browne Jacobson LLP) for the Defendant
Victoria Butler-Cole (instructed by DAC Beachcroft LLP) for the Interested Party
Hearing dates: 4 April 2014
Crown Copyright ©
Mr Justice Stuart-Smith:
i) It is said to be "Tameside irrational" because the CCG asked itself the wrong question and therefore made its decision on a false basis;
ii) It is alleged that the CCG has breached and is in prospective breach of a positive operational duty imposed by s. 6(1) and Articles 2 and 3 of Schedule 1 of the Human Rights Act 1998; and
iii) It has breached its duty to meet the Claimant's assessed need for 24 hour 1:1 care or has failed to carry out an up to date assessment of the Claimant's need for services under s. 3 of the 2006 Act.
The Factual Background
The Claimant's CHC package
The origins of the dispute
"The assertions in your letter suggest that our client, …, should retain legal and practical responsibility for your client's care when she is in hospital and that the community care funding provided by our client for your client's care in the community should be expended on her care whilst in an acute setting. That assertion is flawed as a matter of law. It fails to recognise the legal and practical means by which care within the NHS is delivered. If true, it would compel our client to act in a way that is ultra vires. It is wholly unsustainable."
Further clarification of the CCG's position was provided later in the letter:
"The assertion that the complexity of your client's needs would have led to a decision to continue the provision of community care into an acute setting needs only be stated to demonstrate its fallacy. It is accepted that the complexity of your client's needs will determine the care to be provided to her and the manner in which such care is provided. When in an acute setting, those matters are the responsibility of the Acute Trust. They are not the responsibility of the [CCG]. Your assertion that the care provided by hospital staff does not meet your client's needs must be directed at [the STH]."
"The [CCG] is wrong to contend that it is prohibited from meeting the Claimant's continuing healthcare needs whilst she is [in] hospital because:
(1) It has a duty under s. 3 of the NHS Act 2006 to provide the services it has assessed as needed to meet the Claimant's needs.
(2) It has assessed the Claimant to need 24 hour 1:1 care and therefore has a duty to provide this.
(3) When the Claimant is hospitalised, she has a need for additional treatment (which is provided by the hospital) and she continues to have a need for 24 hour care. Thus the Defendant's duty endures.
(4) The duty would be discharged if a hospital met all the assessed eligible needs. But that is not the case here.
(5) The duty might be frustrated if a hospital refused to accept additional support. But that is not the case here: the hospital is willing to allow external carers to provide support.
(6) As the Defendant accepts, there is no statutory prohibition on the performance of the s 3 duty during the Claimant's admission to hospital."
"It is not the duty of the hospital to meet the Claimant's CHC assessed needs while in hospital. The hospital is entitled to, and expected to, make its own assessment of the Claimant's reasonable healthcare requirements (e.g. bed, X-rays, doctors, nursing staff etc) and how they are met. It is not the duty of the Defendant to meet the Claimant's CHC needs whilst in hospital, both (i) because the hospital is already commissioned to arrange to meet the Claimant's healthcare needs whilst in hospital and (ii) because the duty to provide CHC following assessment does not extend to its provision in a hospital setting because Continuing Care (the very thing that is being commissioned) is by definition, not care in a hospital setting. Hospital care, and Continuing NHS care are, properly viewed, mutually exclusive, save that, in exceptional circumstances, a CCG may use its powers under s.3 of the Act to supplement hospital care (commissioned under block contracts pursuant to s.3 of the Act). The CCG do not consider there are exceptional circumstances which would justify the exercise of such discretion in the present case"
The challenged decision of 22 July 2013
i) The decision was in two parts. The first part was in the letter itself while the second part was a pro forma document which identified the criteria to be considered (as listed in its written policy on the commissioning of care provision) and the panel's short application of those criteria;
ii) The issue that the decision addressed was the provision of continuing healthcare to the Claimant when in hospital. The decision made was that the Claimant would not routinely receive her usual CHC funded package whilst in hospital: see  and ;
iii) The decision referred to and enclosed the DST. It recognised that an updated review of the Claimant's needs required to be undertaken: see  and ;
iv) The decision reviewed the Claimant's current condition. Specifically, it noted (correctly) that the need for 1:1 care had been justified on the basis of her challenging behaviour and the need to manage it in a residential setting. It recorded a perceived reduction in that challenging behaviour since she had returned home and that her consultant had stated that the condition of the Claimant's chest had improved significantly: see ;
v) Having identified the need for a full review, it expressed the view "on the basis of the information currently available" that no circumstances then existed that might warrant the provision of CHC funded care while the Claimant was in hospital but agreed to review that decision if the full multi-disciplinary review indicate that her needs had changed: see . The reference to the provision of CHC funded care in this paragraph is to be understood as a reference to the receipt of her usual CHC funded package whilst in hospital, as explained at ;
vi) The core paragraphs are at -, which should be read in full. On a fair reading of those paragraphs and the decision letter as a whole, the thrust of what the CCG was saying was that it had already commissioned the STH to provide the necessary care for patients who need to be in hospital, even though patients with the same or similar conditions have varying levels of need. It had thus already commissioned the STH to provide the necessary care for the Claimant. It was therefore to be expected that the hospital concerned would make the necessary provision for her care, as they would for any patient who had been admitted. Therefore the only question for the CCG as commissioner and funder was whether the hospital already had the capacity to provide the Claimant's needs (whatever they might be) while admitted or whether it was necessary for the CCG to commission additional, CHC funded care. Its conclusion on the information available was that there was no reason why the STH could not meet the Claimant's assessed needs and provide her with safe and suitable care without the provision of extra funding or CHC funded additional care;
vii) The reference to the Claimant's "assessed needs" in the letter is ambiguous in not specifying whether it was referring to her needs as assessed by the CCG for the purposes of enabling her to live at home or her needs as assessed by the hospital when it took her into its care. However, in the context of (a) the statement in  that "the hospital will make the necessary provision for her care, as they would for any patient who has been admitted" and (b) the undoubted duty of care that the hospital would owe to the Claimant (as to any in-patient) to assess and look after her with appropriate care and skill it is plain that the CCG was conscious of the hospital's obligation to assess her needs on and after admission;
viii) At  the CCG drew the distinction between the issue of capacity that it had been considering and the question whether the STH was deploying its capacity so as to provide a proper level of care for the Claimant. The CCG said (correctly) that concerns about the care that the Claimant had received whilst at the STH were "quality of care issues", which would be the direct and immediate responsibility of the provider of care, rather than capacity issues. On capacity, the STH had confirmed that it was able to meet the Claimant's needs on the ward and had not requested additional capacity in order to do so;
ix) When considering the application of its "Exceptionality criteria" at - the CCG identified the particular needs of the Claimant as being PEG feeding, monitoring of oxygen saturation levels and dealing with her challenging behaviours and expressed the view that "STH should be able to provide [the Claimant] with safe and suitable care that is sufficiently tailored to meet those needs." The issue of the Claimant's challenging behaviour was specifically addressed in the pro forma document in relation to her "Individual Safety". The panel recognised and evidently took into account that the Claimant needed support around her PEG feed, behaviour and other assessed needs and that "[the STH] should be able to provide suitable safe care." Similar observations were made under the headings "Ensuring services are of sufficient quality" and "Ensuring services are personalised to meet individual's needs";
x) In setting out its conclusions the decision letter decided that "additional care whilst your client is admitted to hospital is a duplication of funding and therefore not the most efficient method of funding care for her": see . This reflected the comment made on the pro forma document under the heading "Value for money" that "the CCG commissions STH to provide care for patients who need to be in hospital. Panel had concerns that providing CHC funded care for [the Claimant] whilst in hospital would be a duplication of funding."
The amended claim
"It owes a general duty under section 62 of the  Act to exercise its functions effectively, efficiently and economically. It owes an obligation to patients under its common law duty of care to provide care and treatment with appropriate care and skill. It is required by the terms of its commissioning contracts to meet local and national quality requirement, operational standards and outcome measures."
"It is for the [STH] to assess each patient's needs for care and treatment in hospital and to provide services by way of care and treatment accordingly; … there is no standard package of care …; where, in the [STH's] judgment based upon assessment, provision cannot be made for a patient from within existing capacity as provided for under the contract, the [STH] is at liberty to make a request to the Defendant for additional resource to be made available … . … The [STH] makes its own assessment of the needs of patients who present at its hospitals and are admitted to them. Such an assessment is likely to take into account matters reflected in assessments of needs conducted pre-admission in the community (such as a DST in the case of a patient eligible for NHS Continuing Healthcare) but the [STH's] staff will not place ultimate reliance upon such assessments, which by definition do not address the patient's specific care and treatment needs as they present at the point of admission to hospital or as they may develop during the course of a hospital admission. It is the ongoing clinical assessment of the [STH's] own staff that will guide the plan for care and treatment whilst in hospital."
"The CCG's obligations do not extend to a constant scrutiny of the level of care that a hospital provides and it is entitled to place a level of reliance on the contractual arrangements that it has put in place with the hospital. The CCG is not a regulator of Foundation Trusts, that role lies with the Care Quality Commission and Monitor. It is not for the CCG to govern in what manner the hospital will address and meet the needs of the patient on admission."
The Legal Framework
"(1) A clinical commissioning group must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons to whom it has responsibility--
(a) hospital accommodation,
(b) other accommodation for the purpose of any service provided under this Act,
(c) medical, dental, ophthalmic nursing and ambulance services,
(e) such other services or facilities for the prevention of illness, the care of person suffering from illness and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service,
(f) such other services or facilities as are required for the diagnosis and treatment of illness.
(1A) For the purposes of this section, a clinical commissioning group has responsibility for--
(a) persons who are provided with primary medical services by a member of the group, and
(b) persons who usually reside in the group's area and are not provided with primary medical services be a member of an y clinical commissioning group.
"SC1 Compliance with the Law
1.1 The provider must provide Services and perform all of its obligations under this Contract in accordance with:
1.1.1 the terms of this contract; and
1.1.2 the Law; and
1.1.3 Good Practice
SC2 Regulatory Requirements
2.1 The Provider must:
2.1.1 comply, where applicable, with the registration and regulatory compliance guidance of any relevant Regulatory or Supervisory Body;
2.1.2 respond to all applicable requirements and enforcement actions issued from time to time by any relevant Regulatory or Supervisory Body;
2.1.3 comply, where applicable, with the standards and recommendations issued from time to time by any relevant Regulatory and Supervisory Body;
2.1.5 comply with the standards and recommendations issued from time to time by any relevant professional body and agreed in writing between the Co-ordinating Commissioner and the Provider;
4.3 The Provider must co-operate fully and liaise appropriately with:
4.3.1 the Commissioners;
in order to:
4.3.6 ensure that a consistently high standard of care for the Service User is maintained at all times;
4.3.7 ensure that a co-ordinated approach is taken to promoting the quality of care for the Service User across all Pathways spanning more than one provider;
4.3.8 achieve a continuation of the Services that avoids inconvenience to, or risk to the health and safety of, the Service User, employees of the Commissioners or members of the public.
SC8 Unmet Needs
8.1 Each Party has a responsibility to ensure that the health (including primary and specialised health) and/or social care needs of each Service User are met.
8.2 If the Provider believes that a Service User or a group of Service Users may have an unmet health or social care need, it must notify the Responsible Commissioner accordingly. The Responsible Commissioner will be responsible for making an assessment to determine any steps required to be taken to meet those needs."
i) Shall have her personal needs assessed to make sure that she gets care that is safe and supports her rights;
ii) Shall receive care, treatment and support that meets her needs;
iii) Shall have a treatment and care plan that is right for her;
iv) Shall be cared for by staff with the right skills to do their jobs properly with there always being enough members of staff available to keep the patient safe and meet the patient's health and welfare needs.
Should the Court Intervene?
i) A private law claim asserting a failure to provide proper care when in hospital would be made against the STH as the provider and operator of the hospital owing the duty of care to the Claimant. By contrast, although the present claim is in reality targeting the care given (or not given) by the STH, the public law claim has been brought against the CCG, whose obligation under s. 3 of the 2006 Act is to arrange the provision of that care and not to provide the care itself;
ii) If injunctive relief were sought based upon the private law duty owed by the STH to the Claimant, the Court would require to be satisfied by proper evidence that there was a real risk of harm that justified the granting of the discretionary equitable remedy. It is possible to imagine circumstances (far removed from this case) where the Court might intervene on the evidence of a concerned lay witness, but it would only do so as a holding measure. In the medium to longer term the Court would require appropriate medical evidence to support the lay assertion of risk of serious harm. By contrast, although this public law dispute has been in being for a year and these proceedings for about 9 months, there is still no evidence that enables the Court to make a reliable assessment of severity of the risk to which the Claimant has been exposed either before or after the STH resolved to provide 24 hour 1:1 care. All that can be said with confidence is that, while the Claimant's cousin has identified numerous matters that concern her and the STH has investigated one complaint in accordance with its proper procedures, no harm reaching the level of being reportable has occurred. Even in the context of the claim as presently formulated, the absence of reliable medical evidence is surprising given the existence of claims under Articles 2 and 3;
iii) It was suggested that legal aid might not be available for the pursuit of a private law claim. Assuming that to be correct, it does not lead to the conclusion that remedies at private law are unavailable. As a matter of legislative policy, representation would be available with alternative forms of funding. The Claimant's solicitors (and any solicitors competent to practice in this field) are entirely familiar with the use of CFAs. Put another way, if the claim had merit it cannot be assumed that no lawyers would be prepared to act on a CFA;
iv) The private law criterion for intervention of "serious harm" may not be congruent with the threshold required to justify a claim under Articles 2 and 3, but it seems highly unlikely in practice that harm caused (or liable to be caused) by a failure of treatment in a hospital that justified a claim under Articles 2 and 3 would not also be treated as "serious harm" for the purposes of a private law remedy.
i) The CCG is under a target public law duty pursuant to s. 3(1) of the 2006 Act to arrange for the provision of those health services (including hospital accommodation and CHC where appropriate) to the extent that it considers necessary to meet the reasonable requirements of the persons to whom it has a responsibility, who include the Claimant;
ii) The duty is not an absolute duty to provide the health services. The CCG is entitled to have regard to the resources available to it: see R v North and East Devon HA Ex p. Coughlan  2 WLR 622 at ; R(K) v West London Mental Health NHS Trust  1 WLR 1865 at ;
iii) Although the s. 3 duty may require the assessment of individual cases (not least to enable the CCG to determine whether the services it has already arranged are or should be suitable and sufficient) there is no individually enforceable entitlement to a particular level of care from the NHS: see R(ex p Grogan) v Bexley NHS Care Trust and others  EWHC 44 (Admin) at ;
iv) The CCG accepts that it is in theory possible that circumstances could arise where the services it had commissioned from hospitals and which the hospital was competent and resourced to provide would be inadequate for the reasonable requirements of a person for whom the CCG has responsibility. In those circumstances the s. 3 duty would require that the CCG commission additional services to meet that person's reasonable needs;
v) Both the CCG and the STH are public bodies and are therefore susceptible to public law challenges on the grounds of Wednesbury unreasonableness. Thus (to take an extreme example for illustrative purposes) if the CCG were to refuse to provide CHC or the STH were to refuse to provide care because the Claimant wore pink slippers, that decision would be susceptible to a public law challenge;
vi) The STH owes a private law duty of care to the Claimant whenever she is admitted to hospital;
vii) The services that the Claimant says she requires when admitted to hospital are ones which should be within the competence of the STH to provide;
viii) The STH asserts that it has sufficient expertise and resources to provide the services necessary to meet the Claimant's reasonable requirements and, specifically, the 24 hour 1:1 care that the Claimant says she requires. It has resolved to provide them when the Claimant is admitted to hospital.
Ground 1: Tameside irrationality
Ground 2: Breach of the positive operational duties under Articles 2 and 3
i) In the absence of appropriate medical evidence, it has not been established that the Claimant has been or is at risk of being exposed to levels of harm that would justify invoking either Article 2 or Article 3;
ii) I am not persuaded that an operational duty arises on the facts of this case: see Rabone v Pennine Care Trust  2 AC 72 at ,  per Lord Dyson JSC;
iii) Given that the primary obligations of the parties was that the CCG should arrange for the provision of necessary services and had done so, no question of the CCG acting in breach of Articles 2 or 3 could arise.
Ground 3: Breach of duty to assess needs and meet assessed needs
The Claim is academic
This letter contains our client's decision in relation to the provision of continuing healthcare ("CHC") to your client when in hospital. …
Basis of the decision
Sheffield Teaching Hospital's ability to provide suitable care
(a) whether the individual's needs significantly differ from the needs of other individuals with the same or similar conditions; and
(b) whether the individual would benefit significantly more from the additional or alternative services than the other individuals with the same or similar conditions.
Sheffield CCG Resource Panel: Factors to be considered
|Individual Safety: Panel considered whether JF required additional support whilst in acute hospital. JF needs support around her PEG feed, behaviour and other assessed needs. Sheffield Teaching Hospitals should be able to provide suitable safe care.
|Individual choice and preference: JF is not thought to have capacity to choose how her care is provided.
|Individual's right to family life: JF does not live with family but has support from her cousin. This has been the case for many years.
|Value for money: The CCG Commissions STH to provide care for patients who need to be in hospital. Panel had concerns that providing CHC funded care for JP whilst in hospital would be a duplication of funding.
|Best use of resources for the population of Sheffield: Similar to the previous comment Panel had concerns that providing additional care for JF whilst in hospital did not appear to be reasonable use of resources. However Panel acknowledged this view might change should JF's needs change.
|Ensuring services are of sufficient quality: Panel's view was that STH should be able to provide services of sufficient quality for JF. IF STH Considered there were exceptional circumstances, they could approach the CCG to request additional resources.
|Ensuring services are culturally sensitive: STH should be able to provide services to meet JF's cultural needs
|Ensuring services are personalised to meet individual's needs: STH should be able to ensure the care they provide is sufficiently tailored to meet JF's individual needs.
|Does Panel agree with any comments re exceptionality? Panel did not believe JF's needs met its exceptionality criteria. However if JF's needs changed this decision could be reviewed.
|Summary of decision: Panel declined to routinely provide JF with additional care if she is in hospital. By "additional care" Panel meant providing her usual CHC funded package whilst in hospital. However if JF's needs changed this decision could be reviewed.
BEFORE The Honourable Mr Justice Stuart-Smith on the 2nd day of May 2014
IT IS HEREBY ORDERED THAT:
Note 1 Until the NHS reorganisation that came into effect on 1 April 2013 the Defendant was a Primary Care Trust; but I shall refer to it as the CCG throughout. [Back] Note 2 Claimant’s skeleton argument at  [Back] Note 3 The National Framework was revised to reflect the new NHS framework and structures created by the Health and Social Care Act 2012 with effect from 1 April 2013. References in this judgment are to the revised Framework. [Back] Note 4 At page 122. Similar descriptions appear elsewhere in the document. [Back] Note 5 National Framework at  [Back] Note 6 National Framework at . I refer to the Coughlan and Grogan judgments below. [Back] Note 7 National Framework at  [Back] Note 8 Chronic obstructive pulmonary disease [Back] Note 9 Care specific to the Claimant’s respiratory problems. [Back] Note 10 Using equipment for health monitoring. [Back] Note 11 At [10(4)] and  [Back] Note 12 Claimant’s skeleton at - [Back] Note 13 Amended Grounds of Claim at  [Back]
Note 1 Until the NHS reorganisation that came into effect on 1 April 2013 the Defendant was a Primary Care Trust; but I shall refer to it as the CCG throughout. [Back]
Note 2 Claimant’s skeleton argument at  [Back]
Note 3 The National Framework was revised to reflect the new NHS framework and structures created by the Health and Social Care Act 2012 with effect from 1 April 2013. References in this judgment are to the revised Framework. [Back]
Note 4 At page 122. Similar descriptions appear elsewhere in the document. [Back]
Note 5 National Framework at  [Back]
Note 6 National Framework at . I refer to the Coughlan and Grogan judgments below. [Back]
Note 7 National Framework at  [Back]
Note 8 Chronic obstructive pulmonary disease [Back]
Note 9 Care specific to the Claimant’s respiratory problems. [Back]
Note 10 Using equipment for health monitoring. [Back]
Note 11 At [10(4)] and  [Back]
Note 12 Claimant’s skeleton at - [Back]
Note 13 Amended Grounds of Claim at  [Back]