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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> JP, R (On the Application Of) v NHS Croydon Clinical Commissioning Group [2020] EWHC 1470 (Admin) (07 July 2020) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2020/1470.html Cite as: (2020) 23 CCL Rep 535, [2020] ACD 104, [2020] EWHC 1470 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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The Queen on the application of JP (by his father and litigation friend BP) |
Claimant |
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- and – |
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NHS CROYDON CLINICAL COMMISSIONING GROUP |
1ST Defendant |
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- and – |
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THE LONDON BOROUGH OF CROYDON |
2nd Defendant |
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(instructed by Hopkin Murray Beskine) for the Claimant
David Lawson (instructed by Capsticks Solicitors LLP) for the 1st Defendant
Christine Cooper (instructed by LB of Croydon Legal Services) for the 2nd Defendant
Hearing dates: 23-24 June 2020
The hearing was conducted remotely by Zoom
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Crown Copyright ©
Mr Justice Mostyn:
i) Was the CCG's decision that JP was no longer eligible for continuing care, and that his package of support should be reduced, irrational?
ii) Did the CCG provide adequate reasons for its decision?
iii) Did the CCG fail to comply with the relevant procedure set out in the national framework for NHS continuing care assessments?
iv) Did the CCG misapply the national framework when reaching its substantive decision on JP's eligibility for continuing care?
v) Has the local authority approached its assessment of JP's care needs in a lawful manner?
vi) Have the CCG and the local authority unlawfully failed to cooperate with one another?
i) Judicial review of an exercise of executive power is a remedy of last resort. It will not be granted if there exists an equivalently efficacious alternative remedy.
ii) The judicial review court is not a court of appeal. In a court of appeal the challenge may either be to the decision-making process or to the outcome. In the judicial review court challenges are almost inevitably to the decision-making process; challenges to outcome are exceedingly difficult.
iii) A person exercising an executive power must:
a) not act dishonestly or in bad faith or in breach of a person's Convention rights;
b) direct himself properly in law and properly apply it;
c) call his own attention to the matters which he is bound to consider by asking himself the right question and taking reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly;
d) exclude from his consideration matters which are factually incorrect or otherwise irrelevant to what he has to consider; and
e) give sufficient reasons for his decision so that any person affected can know why he has won or lost, and any judicial review court can conduct a meaningful review.
The natural justice principle of nemo iudex in causa sua is captured by the requirement of acting in good faith. The principle of audi alteram partem is caught by the requirement of calling attention to the matters the decision-maker is bound to consider.
iv) Provided that these rules are followed, the decision itself will be almost immune from challenge. Where the rules are followed, a challenge to outcome will only be possible where it can be said that the decision is so absurd that no sensible person could ever dream that it lay within the powers of the decision-maker.
"The Framework sets out guidance for CCGs when assessing the needs of children and young people whose complex needs cannot be met by universal or specialist health services. As well as describing, in detail, the process to be followed when carrying out such assessments (and making subsequent decisions on the nature and extent of any care to be provided), the Framework includes a decision-making tool (the "DST") to be used to assist in assessing children's needs across 10 "domains" (covering areas such as breathing, eating and drinking and mobility). The DST sub-divides each domain into ascending "levels of need", namely "no additional needs", "low", "moderate", "high", "severe" and "priority", with descriptions given of the matters corresponding to each level of need in each domain. The Framework states that a child is "likely to have continuing care needs if assessed as having a severe or priority level of need in at least one domain of care, or a high level of need in three domains of care": see para 148. However, the Framework makes clear that this is not a firm rule, and that assessors, when presenting recommendations to the decision-making forum, should "consider the level of need identified in all care domains in order to gain the overall picture": para 149.
In relation to the "breathing" domain, which is of particular importance in the present case, the Framework indicates (see pp. 32 – 33) that a child's needs will be "severe" if the child:
'Has frequent, hard-to-predict apnoea (not related to seizures); or severe, life-threatening breathing difficulties, which require essential oral pharyngeal and/or nasopharyngeal suction, day or night; or a tracheostomy tube that requires frequent essential interventions (additional to routine care) by a fully trained carer, to maintain an airway; or requires ventilation at night for very poor respiratory function; has respiratory drive and would survive accidental disconnection, but would be unwell and may require hospital support.'"
"JP cannot effectively breathe independently because of poor respiratory drive following surgery for excision of a brain tumour this has also resulted in him experiencing breathlessness and an inability to cope with his respiratory need without a tracheotomy and supportive ventilation at night. JP is not on inhalers but he is on nebulised 6% sodium chloride (NaCl) twice daily and that can increase if his secretion is too think and he becomes too difficult to suction. JP has a tracheostomy because of 4 failed attempts at extubating as an inpatient because of the reasons listed above. Due to chemotherapy treatment he is immuno-compromised leading to greater risk of chest infection. JP requires regular suctioning (both mouth and tracheostomy due to unsafe swallow and lack of a cough reflex) to manage his secretions and he is on regular nebulisers of NaCl .His tracheostomy will need to be changed monthly unless it falls out by accident in which case it needs to be replaced. His tracheostomy tapes and dressing needs changing once daily. An Emergency Respiratory Care Plan is in place and must be followed in an Emergency. JP has had one aspiration episode since discharge. He had oral antibiotic and required a hospital visit. JP physiotherapy is associated with his mobility and not respiration. JP has carers at night to keep him safe and ensure his airway is patent at night. He can require suction between 10- 15times at night depending on his respiratory status.
His parents say that his tracheostomy is very stable and requires suctioning between 4 - 8 times a days.
SEVERE Need Agreed"
"We have recently completed a sleep study off ventilation which is now within acceptable standards so we are planning on withdrawing ventilation on review. I can touch base with you once we have reviewed him in clinic and can update you with the plan and send over any information you may need. I would suggest that if we succeed with withdrawing the ventilation he would score a high under stable tracheostomy that can be managed by the child or young person or only requires minimal and predictable suction/care from a carer. Hope that information is helpful for now and I will be in touch after his appointment."
This email certainly does not suggest that JP was definitively and for the long-term capable of breathing at night without the aid of a ventilator. It is phrased in provisional and conditional terms.
"Nurse assessor Conclusion:
Health assessor has scored HIGH in this domain because evidence indicates that: JP has stable tracheostomy that can be managed by the child or young person or only requires minimal and predictable suction / care from a carer.
Alexandra McClements Well Child Paediatric LTV CNS and the respiratory team at St Georges NHS trust scores HIGH; agreeing with the above.
Agency report JP is copying very well with no ventilation overnight. Clinical notes confirm JP is self-ventilating overnight, no oxygen and sleeps well, requiring [suction] 1 -2 times a night but not every night."
"Breathing – scores HIGH
JP has stable tracheostomy that can be managed by the child or young person or only requires minimal and predictable suction / care from a carer. Alexandra McClements Well Child Paediatric LTV CNS and the respiratory team at St Georges NHS trust scores HIGH; agreeing with the above.
Agency report JP is coping very well with no ventilation overnight. Clinical notes confirm JP is self-ventilating overnight, no oxygen and sleeps well, requiring 1 -2 times a night but not every night.
"In JP's case, as indicated in the DST domains of care, JP does not meet the eligibility criteria as he scores 1 x High in the breathing domain with no other triggers in any of the Domains for his health needs. However, the health assessor is recommending eligibility for health funding to the CCG. This is because JP has a tracheostomy in situ and requires regular intervention for airway clearance.
CHATT 19
However, 4 or 5 nights cover should be considered to ensure safe airway management."
"We have recently completed a PSG on JP and sadly the results show that we need to restart his BiPAP again.
I know that you were in the process of reviewing his care package, let me know if you need any further information. See the email below from Dr Chavasse. We will consider a transition to NIV in the new year with a decannulation if the oncology team agree."
Dr Chavasse is a consultant respiratory paediatrician responsible for JP's respiratory care.
"In the meantime, yesterday evening I have received updated clinical info around a post ventilation stop sleep study. I have added this to the DST with my clinical views that this does not change the DST scoring from breathing. He is having central apnoeas however they are not unpredictable as they are occurring at night so I have added in is able to breathe unaided during the day but needs to go onto a ventilator for supportive ventilation. The ventilation can be discontinued for up to 24 hours without clinical harm."
"We reviewed JP jointly with the oncologist, they were very happy with his progress and will continue to scan him 6 monthly to observe for any tumour regrowth. As you are aware, we recently conducted a full sleep study that has shown that JP was having significant central apnoeas, the oncologist explained that this would correlate with the MRI with some damage to the medulla. JP will therefore require ventilation until the foreseeable future. Our aim would be to remove the tracheostomy and deliver the ventilation via a non-invasive mask which will allow JP to have a better quality of life. We explained to the family yesterday that this is often a lengthy process and we would not start this process until the spring. We will meet the family in January and issue a mask for JP to get used too. We will also arrange a MLB procedure for the ENT team to review the tracheostomy and airway to ensure that it is safe for removal. We will then book him for a week inpatient stay to remove the tracheostomy and establish NIV. This is a process that is not always successful so if at any time JP would fail the tracheostomy would be reinserted.
As JP's health needs have not changed since he was discharged. Dianne I understand that you are awaiting the DST review with the commissioners, will the package be reduced in the interim?"
"Following the recent decision made at panel on Wednesday 27 November not to award Children's NHS Continuing Care. We were further updated following a sleep study by the LTV team at St. Georges Hospital. This updated information was added to the completed DST and was found not to change the original decision.
- Not eligible for Children's NHS Continuing Care.
- Health will fund 4 x 9 hour nights a week (term-time) and 5 x 9 hour nights (holiday time)
- Term time carer will be provided 8:45 – 3:10
Enclosed with this letter, you will find the appeals process and relevant forms to be completed should you wish to appeal this decision."
i) The news that JP was now back on night-time ventilator was a fundamental change of circumstances and basic fairness surely required that Ms Colley reconvened the panel. I do not accept Ms Colley's statement in her witness statement that there was no indication to bring the case back to the panel as there was not a significant change in score. Had the new evidence been properly represented and considered there could well have been a significant change in score.
ii) Ms Colley acting alone did not have the legal power to decide that the new information was not capable of altering the decision of 27 November 2019. That was a decision that only the full panel could take.
iii) The decision of 19 December 2019 failed properly to take into account highly relevant information. In particular, Ms McClement's important email of 18 December 2019 stating that JP's health needs "have not changed" since his discharge from hospital in May 2018 does not seem to have been taken properly into account.
iv) The decision took into account irrelevant and misleading information conveyed by Ms Miles to Ms Colley.
v) The decision was very inadequately reasoned.
"I understand that you initiated an appeal in response to JP's Continuing Care assessment that was undertaken on 29 October 2019 (sic). Thank you for completing the appeals questionnaire and as a result of this I understand that Katherine Merritt (Children's Continuing Care Nurse Assessor) undertook an informal resolution meeting with you on Wednesday 8 January 2020.
During this informal meeting, Katherine outlined the continuing care process and provided an explanation as to why JP does not meet eligibility for children's continuing care. I understand that you agreed with all the scoring in the domains and the conclusion was that you are not disputing the assessment but only want the care package to change back to pre-review hours.
Because of this, I can advise you that your appeal is not upheld, as there is no grounds for appeal.
As per our previous correspondence, the CCG does recognise that JP does have health needs and that is why we are going to be funding four nights 2200 - 0700 term time and 5 nights 2200- 0700 holiday time; with a carer being provided at school 0845 - 1515.
If JP's health needs do change in the future and another referral is made to continuing care then we will respond accordingly. JP will be reviewed yearly with his next review being 27 November 2020."
i) The former states "each local authority in England must make arrangements to promote cooperation between… the authority and each of the authority's relevant partners." The relevant partners include any clinical commissioning group for an area any part of which falls within the area of the authority. Section 10(3) provides that in making such arrangements a local authority must have regard to the importance of parents and other persons caring for children in improving the well-being of children.
ii) The latter states that in exercising their respective functions NHS bodies (on the one hand) and local authorities (on the other) must co-operate with one another in order to secure and advance the health and welfare of the people of England and Wales.