Case digest

PCTs can use independent user trusts for services
GUNTER v SOUTH WESTERN STAFFORDSHIRE PCT [2005] EWHC 1894 (Admin) QBD (Admin) 26/8/2005

The claimant, Rachel Gunter, had a tumour removed, which had resulted in blindness. She also suffered from diabetes insipidus and as such had problems in maintaining fluid balance within her body. As a consequence she had had several strokes. She required 24-hour nursing care. Care had been provided by one parent in the home setting, with private

24-hour nursing support. Her parents could no longer sustain the level of care that Rachel needed and wished to have more care provided to Rachel in her home. They wished to be involved in her care but could no longer maintain the ‘hands on’ aspect of care.

The PCT’s preferred option for Rachel’s care was a residential package, as it was cheaper, and there was less risk if a crisis developed and there was a need for immediate specialist attention. Rachel applied for judicial review of the decision on the basis that the PCT should provide a 24-hour, seven-days-a-week care package, which allowed her to continue to live in the family home. She submitted that an independent user trust, which had been used as a vehicle for the provision of assistance by local authorities to those with disabilities, could and should be put in place.

HELD:

1. To remove Rachel from her home would interfere with her right to respect for her family life within Art.8 of the European Convention on Human Rights 1950;

2. Parliament had deliberately given very wide powers to PCTs under section.23 and Sch.5A para.12 of the National Health Service Act 1977 to enable them to do what in any given circumstances seemed to them necessary to achieve the provision of services. Section 23 of the 1977 Act provides for arrangements to be made with any person or body (including a voluntary organisation) for that person or body to provide, or assist in providing, any service under the Act. As such, agencies can provide services for the NHS body, in exercise of their functions. A voluntary organisation is defined as, “a body the activities of which are carried on otherwise than for profit, but does not include any public or local authority,” (s.128 (1). In addition, wide power exists in para 12 of Schedule 5A of the 1977 Act, which allows PCTs to do what appears to it to be necessary or expedient for the purpose of or in connection with the exercise of its functions, which includes entering into contracts. As such, the power could involve the use of a voluntary organisation such as an Independent User Trust as the supplier. Although the power existed, there were a number of practical problems, which might make the suggested arrangement impossible to achieve;

3. The possibility of an Independent User Trust with the substantial saving in cost that it might produce for care at home should be explored and Rachel’s case should be reconsidered by the PCT. There was no assumption that home care would follow.

Closure of day centre – responsibility for the assessment and right to private life
R (on the application of J & ORS) v (1) SOUTHEND BC (2) ESSEX CC (2005) QBD (Admin) 5/8/2005

The claimants had learning difficulties of varying severity and were each long-term users of a number of day centres operated by Southend Borough Council. In 1998 it had became the unitary authority assuming responsibility from Essex County Council for the provision of community-care services to those who were ordinarily resident in the Southend catchment area.

The claimants had attended day centres for over 18 years and, while being under the statutory care of Essex, the assumption of responsibility by Southend meant that the claimants had been entitled to remain at those day centres notwithstanding that the centres had come under Southend’s authority.

In response to the ‘Modernising Social Services’ White Paper, so that clients became more involved within the community, Southend decided to close one of the day centres and provide services at the remaining centre, only for those who were ordinarily resident within its catchment area. The claimants were all resident within Essex’s catchment area but not ordinarily resident in Southend’s catchment area.

The claimants challenged the decision to close the day unit on two grounds: (1) that Southend had failed to carry out a statutory assessment of their care needs; and (2) to make the remaining centre available only to those within Southend’s catchment area infringed the claimants’ right to a private life under Art 8 under the European Convention on Human Rights 1950. The ‘private life’ was the relationships that they had built up over many years, which they would be unable to pursue in their vulnerable state by the exclusion from the day centre.

HELD:

1. The relevant statutory responsibility towards the claimants was owed by Essex and not by Southend. The mandatory duty to provide assessments had not been discharged by Essex by placing them with Southend. As such, Southend had not acted unlawfully by failing to carry out an assessment of the claimant’s care needs since it was not under a statutory duty to do so;

2. On the assumption that the exclusion of the claimants from the day centre was likely to affect their private lives, such interference was limited. Both authorities had taken steps to ensure that the claimant’s relationships were maintained outside the day centre. Opportunities would be open to them under the modernising scheme. In the circumstances, taking into account proportionality and balancing the effects of the changes upon all concerned, there was no breach of Art.8.

Withholding and withdrawing of artificial nutrition and hydration
R (Oliver Burke) v GMC & THE DISABILITY RIGHTS COMMISSION & 8 ORS [2005] EWCA Civ 1003 CA (Civ Div) 28/7/2005

The claimant suffered from a congenital progressively degenerative brain condition, spino-cerebellar ataxia that would eventually result in a need for artificial nutrition and hydration (ANH). Mr Burke wished to be fed and provided with appropriate hydration until he died of natural causes.

He did not want to die of thirst. He was expected to remain competent to take and communicate decisions until the final stage of his life. He feared that ANH would be withdrawn before the final stage of death as those caring for him might decide that his life was not worth living and withdraw ANH to bring it to an end. The trial judge held that under the European Convention on Human Rights 1950 and at common law, if a patient was competent, or although incompetent had made an advance directive, his decision to require the provision of ANH in his dying days was determinative of the issue. Mr Burke had obtained declarations in respect of the GMC guidance paper ‘Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making’. Three of the declarations made by the judge related to Mr Burke specifically, and the other three declared unlawful a number of paragraphs in the guidance. The GMC appealed against the declarations made.

The Court of Appeal had to consider Mr Burke’s best interest and concerns in relation to the possible withdrawal of ANH: whether withdrawal of ANH contrary to the wishes of B infringed his rights under Art.3 (no inhuman or degrading treatment) and Art.8 (right to family life) of the Convention; whether the guidance was compatible with the duty of a doctor to administer ANH to a competent patient where this was necessary to keep the patient alive and the patient expressed a wish to be kept alive; the right of a patient to select the treatment he would receive; the position of the incompetent patient; and whether there was a legal requirement to obtain court authorisation before withdrawing ANH.

HELD:

1. There were no grounds for thinking that those caring for Mr Burke would be entitled to or would take a decision to withdraw ANH in such circumstances. Nor did the guidance suggest anything to the contrary. Mr Burke should have sought reassurance from the GMC as to the purport of their guidelines and from the doctors who were treating him as to the circumstances, if any, in which ANH might be discontinued. He did not take that course as he was advised to bring a claim for judicial review, which challenged aspects of the guidance that had no relevance to him. The judge’s declarations extended beyond the approach to patients in Mr Burke’s position and had been understood as bearing on a right to treatment generally, and not merely life-prolonging treatment. There were dangers in a court grappling with such issues when those issues were detached from a factual context that required their determination;

2. Mr Burke’s fears addressed by the declaratory relief granted by the judge were unnecessary for his protection and inappropriate as far as the guidance itself was concerned. So far as the guidance related to Mr Burke’s predicament, there was no ground for declaring any part of it unlawful. The court also strongly advised against selective use of the trial judge’s declarations in future cases;

3. Where a competent patient indicated his wish to be kept alive by the provision of ANH, any doctor who deliberately brought that patient’s life to an end by discontinuing the supply of ANH would not merely be in breach of duty but would be guilty of murder. In addition, Article 2, the right to life, would plainly be violated;

4. Where life depended upon the continued provision of ANH, there could be no question of the supply of ANH not being clinically indicated unless a clinical decision had been taken that the life in question should come to an end. That was not a decision that could lawfully be taken in the case of a competent patient who expressed the wish to remain alive;

5. It was not possible to attempt to define what was in the best interests of a patient by a single test, which applied to all circumstances. The examples given to the court were ones where the doctors appeared to have failed to observe the guidance, rather than being illustrative of any illegality in the guidance;

6. Good practice might require medical practitioners to obtain a declaration where the legality of proposed treatment was in doubt. This was not, however, something that they were required to do as a matter of law (Glass v UK (2004) 1 FLR 1019). The court’s role was not to ‘authorise’ treatment that would otherwise be unlawful;

7. It was importance that the guidance should be understood and implemented at every level throughout the NHS so that people in Mr Burke’s position could have confidence that they would be treated properly and in accordance with good medical practice, and that they would not be ignored because of their disability.

Local authority to consider whether money paid to carer should be disregarded
R (on the application of STEPHENSON) v STOCKTON-ON-TEES BC [2005] EWCA Civ 960 CA (Civ Div) (26/7/2005

The claimant, Evelyn Stephenson, was 78 years of age and lived in rented warden-controlled accommodation. She was in poor health and housebound. She received home care from the local authority. In addition to this, her daughter, who was an experienced nurse, also provided two days a week care for which Mrs Stephenson paid as her daughter had reduced her employment to help Mrs Stevenson. The local authority’s policy was that no allowance should be made for care provided by a family member and as such the money paid by Mrs Stephenson to her daughter was not to be disregarded.

HELD:

The High Court judge had correctly concluded that the family-member policy was not irrational but he had not considered whether the policy was applied properly. The policy was based on the proposition that a family member would normally perform the care voluntarily and that the recipient would not expect to pay, or be expected to pay for them. Neither proposition applied in the instant case because Mrs Stevenson had only been willing to allow her daughter to give up work in order to provide care for her on the basis that she compensated her for doing so.

It was not necessary to consider such an arrangement in contractual terms or to import into it an intention between mother and daughter to create legal relations in order to advance the proposition that these were services related to Mrs Stephenson’s disability for which she was paying, and in relation to which it was not certain that they would have been either instituted or continued voluntarily if Mrs Stevenson had not insisted that they be paid for. The local authority should have carefully considered the highly unusual circumstances and decided whether the case constituted an exception to the family-member policy but it had failed to do so. The local authority had treated the policy as a rule and had failed to exercise its discretion.

Case digest compiled by Caroline Bielanska, TEP, solicitor and freelance consultant. She can be contacted at caroline.bielanska@ntlworld.com