St Helens Borough Council, R (on the application of) v Manchester Primary Care Trust & Anor [2007] EWHC 2391 (Admin)

Case No CO/2317/2007

[2007] EWHC 2391 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday 7 September 2007

The Strand

London

WC2A 2LL

B e f o r e:

MR JUSTICE BEATSON

Between

THE QUEENClaimant

on the application ofClaimant

St Helens Borough CouncilClaimant

Manchester Primary Care TrustDefendant

PE (by her litigation friend the Official Solicitor)Interested Party

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(Official Shorthand Writers to the Court)

Miss Jenni Richards and Miss N Greany (instructed by Legal Services

Department, St Helens Borough Council, Merseyside WA10 1HP)

appeared for Claimant

Mr Stephen Knafler (instructed by Hempsons, Manchester M1 3LF)

appeared for Defendant

Judgment

Friday 7 September 2007

Introduction

[1]The claimant, St Helens Borough Council, has for many years funded a package of care for PE, a 34 year old woman who suffers from Dissociative Identity Disorder ("DID"). The current annual cost to the claimant is approximately £675,000. In these proceedings, which were launched on 20 March 2007, the claimant seeks permission to judicially review the decision of the Manchester Primary Care Trust's Joint Commissioning Executive Funding Panel ("the Panel") on 30 November 2006 that PE is not eligible for fully funded NHS care.

[2]At present the Primary Care Trust ("PCT") funds certain services provided to PE, in particular weekly psychotherapy by Dr Valerie Sinason at the Clinic for Dissociative Disorder in London, reviews of medication and management of her epilepsy and other medical conditions.

[3]The issue is whether the Panel's decision that PE's care needs are not primarily health care needs or are more extensive health care needs than those set out in the decision is arguably flawed on public law grounds.

[4]Acknowledgements of Service were filed by the Official Solicitor on behalf of PE, not contesting the claim, and by the defendant, the Primary Care Trust, opposing the grant of permission.

[5]On 19 June 2007, Munby J, after considering the papers, directed that the application for permission be heard in open court with a time estimate of 90 minutes. His Lordship, as will be seen from my judgment has considerable knowledge of PE's general position. He observed that the defendant's summary grounds mounted powerful arguments and had come close to persuading him to refuse permission but that, on balance, he considered that the decision in relation to permission was better taken at an oral hearing. He directed the claimant to lodge a skeleton argument responding to the summary grounds.

[6]The material submitted by the parties in support of their respective submissions amounted to over 1500 pages of material in five lever arch files. In view of this, Munby J had directed that a short list of essential reading be prepared and an estimate of the time needed for the necessary pre-reading provided. On the day before the hearing the former, but not the latter, was provided. The items stated to be essential reading added up to 650 pages. The hearing lasted for three-and-a-half hours.

The Legal Framework

[7]The legal framework is set out in paragraphs 69-85 of the claimant's Detailed Statement of Facts and Grounds, a document 52 pages long. As this is a permission application, and in view of the length of the judgment I am going to give, I do not propose to set out the statutory provisions. The fundamental question is whether PE's care needs fall within the obligations of the National Health Service as set out in sections 1 to 3 of the National Health Service Act 1977 or whether they fall within the community care obligations of local Social Services authorities pursuant to sections 21 and 29 of the National Insurance Act 1948, and section 2 of the Chronically Sick and Disabled Persons Act 1970. Section 21 imposes obligations on local authorities to provide residential accommodation for adults who, by reason of age, illness, disability or other circumstances, are in need of care not otherwise available to them. Section 2(1) of the 1970 Act provides, inter alia, for practical assistance in the home, education, travelling and the provision of meals.

[8]The position in relation to nursing care is now set out in the 2006 Act, but on the issues in this case the provisions are identical to those in the 1977 Act, which was the relevant legislation for the purposes of these proceedings.

[9]The demarcation between nursing care as part of a social care package, and nursing care which is not, was first considered in R v North & East Devon Health Authority, ex parte Coughlan

[2001] QB 213

. The Court of Appeal set out general propositions in paragraph 30 of its judgment. At paragraph 31 it stated that, where the primary need is a health need, the responsibility is that of the NHS, even where the individual is placed in a home by a local authority. Paragraph 48 states that the National Health Service cannot, by the use of eligibility criteria, place a responsibility on a local authority which goes beyond the obligations under section 21 of the 1948 Act. It follows that it could not go beyond an obligation not empowered by section 2 of the 1970 Act.

[10]Since the decision in ex parte Coughlan, the Secretary of State has issued guidance in the form of LAC (2001) 18. Section 49 of the Health and Social Care Act 2001 was enacted to assist in the determination of the boundary by providing that a local authority may not provide nursing needs or a registered nurse. Nothing in the enactments relating to the provision of community care services authorise or require a local authority to provide or arrange for the provision of nursing care by a registered nurse.

[11]The issue has come before the courts, notably in R(T, D & B) v London Borough of Haringey

[2005] EWHC 2235 (Admin)

(Ouseley J), and R (Grogan) v Bexley NHS Care Trust

[2006] EWHC 44 (Admin)

(Charles J). As a result of the decision in the latter case, the Secretary of State issued further guidelines. These summarised Charles J's judgment but also went further. For present purposes it suffices to say that the issue is whether health need is a primary need. The deciding body must look at the whole package and not at parts of it. It must look at the scale and type of care, as well as whether it is incidental to the provision of some other service. An assessment needs to include consideration of all relevant needs and not only the needs of nursing by a registered nurse.

The Background

[12]Before turning to the grounds of challenge set out in paragraphs 86-121 of the claimant's Detailed Statement of Grounds, which are summarised in paragraph 5 of Miss Richards' skeleton argument, I outline the background and the PCT's decision-making process. The Council first became involved with PE in 1978 when care orders were made in relation to her and her siblings. I do not need to deal with the early part of the history. I pick up the story in 1999 when the Council commissioned Dr Roger Banks, a Consultant Psychiatrist, to assess PE.

[13]In February 2000, pursuant to a recommendation by Dr Banks that she reside in her own property with a 24 hour care support package, PE moved to a property in Manchester. Dr Banks also recommended that she be assessed by Dr Sinason. This was done in March 2000. PE began psychotherapy with Dr Sinason in the clinic in London in September 2000. Dr Sinason reported on progress in July 2005. The present support package has been in place since January 2001, although it has been delivered by different providers and with variations over the time.

[14]The provisions made for PE by the claimant are currently primarily as follows. First, she has 24 hour care, which was on a 3:1 ratio in the day and is soon to be a 2:1 ratio, and which was on a 2:1 ratio at night, but is now, as I understand it, a 1:1 ratio. Secondly, the carers escort her to her weekly psychotherapy sessions in London; they receive feedback from Dr Sinason and they provide support for the therapy within Dr Sinason's plan. Thirdly, the carers provide support with activities of daily living, including taking medication, and in dealing with PE's challenging and sometimes aggressive and self-harming behaviour. This includes intervening and at times administering medicine according to criteria developed by the medical team and JW (to whom I will refer further) to deal with oncoming or actual dissociation. Fourthly, they have to deal with fluctuation in PE's condition, her cognitive abilities and her mental state. There are 16 carers at present. They are supported and advised by Mr Farquharson, who has been employed by the Council on a part-time basis to do this since January 2001.

[15]The care package is managed through a care programme. A community psychiatric nurse, Sally Peach, is the care co-ordinator and a local consultant psychiatrist, Dr Alnuamaani, is involved in her care. Miss Peach and Dr Alnuamaani are two members of a multi-disciplinary team which takes decisions about PE's care. The third member is Sarah Shaw, the care manager employed by the claimant. At other times other professionals have participated in these arrangements. It is not entirely clear who the members of the team are. Certainly for the purposes of the preparation of material for the Panel in the decision under challenge, there were more individuals involved than those mentioned. I will return to that.

[16]A review by Dr Aitken and Dr Arkwright, Consultant Clinical Psychologists, of PE's treatment was commissioned by the St Helens PCT in May 2002. At that time the St Helens PCT were responsible for her health care.

[17]On 1 June 2003, Mr Bond (then the Council care manager responsible for her) produced a draft re-assessment of her needs. This stated, inter alia, that the higher level of staffing required related substantially to the delivery of therapeutic support which was considered necessary for the management and treatment of PE's DID and that the Council considered this to be health care and therefore the responsibility of the PCT. The Council's attempts to persuade the PCT to provide more services are set out in the witness statement of Mr Vickers (its then Acting Director).

[18]In 2004 Dr Elisabeth Milne, a Consultant Psychiatrist, was instructed by the Official Solicitor to advise on the Council's re-assessment. The Council's assessment and Dr Milne's report were respectively completed in July and November 2004. By this time the provision of care by the claimant to PE was affected by a very difficult relationship between it and Mrs JW, to whom I have referred. Mrs JW was involved in PE's care from 1983, first as foster parent and later as friend and advocate, and she had active involvement in PE's therapy. The Council was concerned about the effect of JW's influence on its delivery of care and the access by social and health carers to PE. Dr Milne's report stated that, because of the difficulties in the relationship between PE, JW and the Council, the management of the care programme be done by the PCT. I set this out because it was suggested that this was an indication of the nature of the care provided. In the context of Dr Milne's report it does not appear to be so.

[19]The difficulties to which I have referred came into the open at the end of 2003 when the Council learned that Channel 4 was making a film about PE. An attempt by the Council and the Official Solicitor to prevent the broadcast failed (see the judgment of Munby J

[2005] EWHC Fam 1114

, which was given in May 2005). By that time the Council was considering best interest proceedings in the Family Division to limit JW's role in PE's care. These were launched in October 2005 and heard by Munby J. A number of the reports to which I will refer were prepared for the best interests proceedings. In particular Dr Nicholas Land was instructed by the Council and the Official Solicitor. He prepared a number of reports in January, February, July and November 2006. The February report was prepared at the direction of Munby J. One of Dr Land's reports states that the Council's aim was to limit JW's role to that of a strategic consultant rather than as a person with a hands-on role in therapy and care arrangements. The best interests proceedings were ended by an order made by agreement in December 2006 and I refer no more to JW or her role then or thereafter.

[20]Reports for the best interest proceedings were also prepared by Dr Banks in March 2006. Miss Richards' detailed grounds refer extensively to Dr Land's reports (see paragraphs 35-46). His reports deal with PE's history, her challenging behaviour (including self-injury), her diagnosis, and the views of others involved: for example, an update of Dr Banks' views to May 2006, the views of Dr Sinason (who also prepared a report for the best interests proceedings) and the views of Mr Farquharson.

[21]Dr Land's conclusions in his report dated 26 July 2006 contain a number of observations which, Miss Richards submits, are relevant to the issues raised by the present claim. These are summarised by Miss Richards in paragraphs 43 and 44 of the detailed grounds. In particular Dr Land sets out what he regards as appropriate roles for the health professionals. It is important to remember that Dr Land was commissioned to prepare his reports for the best interests proceedings in the Family Division. The central issue in those proceedings was the relationship between PE, JW, the carers and the Council. It was not an analysis of whether her care need was primarily for health care.

[22]In November 2005, a month after the best interests proceedings were launched, the PCT agreed to undertake a community care assessment. Reports were commissioned by Dr Curran and Dr Jaiswal, who were general practitioners. Two Clinical Psychologists with the Manchester Learning Disability Partnership provided a joint report. There was a report from Gary Gillett, a Practice Development Nurse, who records discussions with staff and with JW, and his observations of PE when he visited the home. There was also a report by Dr Clarke, a Consultant Psychiatrist in Psychotherapy, who did not see PE but considered the other reports submitted and reported on that basis. Finally, there is a letter from Dr Alnuamaani, the Consultant Psychiatrist, who is a member of the multi-disciplinary team.

[23]The professionals who were asked to carry out the assessments were given all the reports prepared for the best interests proceedings for that purpose. They thus had Dr Land's and Dr Sinason's reports (see paragraph 34 of the statement of Mr O'Gorman, the PCT's Head of Joint Commissioning). The assessments were discussed at a meeting of the multi-disciplinary team on 23 November. That meeting was attended by those who had written the assessments and reports (to which I have referred), by Sarah Shaw (by then the care manager, who also reported), and by Mr Vickers, who, however, was not permitted to participate. As well as the assessments, the meeting considered a self-assessment form completed by PE with assistance from her solicitor, and a letter from Mr Farquharson. It recommended that the costs of PE's care be shared by the Council and the PCT.

[24]The matter came before the Panel on 30 November. The decision of the Panel is contained in a 16 page document. I do not propose to read it into this judgment, but it should be read as an appendix to it. I have had careful regard to its contents. The Panel meeting lasted between 2pm and 5.20pm. The first hour was spent reading the papers which had been prepared by the PCT's continuing care facilitator, Ms Wardle, who acted as the presenting manager. The Panel considered the multi-disciplinary team's recommendation. It had before it the reports and documents considered by the multi-disciplinary team, its minutes, an enhanced care co-ordination assessment prepared by Miss Shaw, and the Department of Health National Decision Support Tool. Mr O'Gorman's statement, in paragraphs 36-40, states that three of the seven members of the Panel, including Dr Margison, a nationally respected psychotherapist and medical director of the Manchester Mental Health and Social Care Trust, had read the reports prepared for the best interests proceedings. Mr O'Gorman's statement says that they considered whether the best interests reports, including Dr Land's, should be taken into account, but concluded that they should not because they were prepared for a different purpose (to which I have referred) and because the assessors had read them before they prepared their reports. His evidence is also that the Panel considered (presumably in the light of what the three Panel members who had also read them said) that the assessors' reports were sufficiently detailed and the other reports would not materially add to the evidence.

[25]The reports prepared for the best interests proceedings were, however, available to the Panel members. The minutes of the meeting only refer to Dr Land's report dated 16 January 2006 in the context of whether additional documents should be considered. Mr O'Gorman drew attention to the fact that Miss Shaw had stated that his report contained a detailed account of PE's history and should be read in conjunction with her report. The minutes state that it was unanimously agreed that at that stage of the proceedings the Panel had received sufficient information for it to consider the application for funding for PE. With regard to Dr Land's report, it is said that it considered that his report would not in any material way add to that evidence, that it contained a large number of extraneous matters referring to the litigation then currently in train and those matters would potentially distract the Panel from their core task.

[26]The Panel also took into account the Strategic Health Authority's Eligibility Criteria for continuing health care. That had been in place for some time, but amendments were made to it on 1 May 2006. The amended criteria were considered by the Panel. It took these into account and reviewed the application in the light of them. That review is contained on pages 4-14 of the minutes of the meeting. Again, I do not propose to set out the criteria. It suffices to say that they guide a decision-maker as to the approach. For example, paragraph 1 of the amended criteria states:

"The service user has significant health care needs which means that the overall scale is such that they should be regarded as wholly the responsibility of the NHS. Their need will primarily be for health care. This will usually mean that the individual's condition triggering a comprehensive assessment has resulted in complex health care needs and/or intensive health care needs and/or unstable, unpredictable health care needs and/or rapid deterioration. 2. An individual's primary need for health care is likely to be indicated if the service user requires significant health care inputs, although this is not determinative because it is possible that the individual may have such needs which are not being fully met at present."

[27]No criticism was made by the claimant of the criteria. It is, however, claimed that the Panel misunderstood them. The Panel concluded that PE's care needs were not primarily for health care and that, save for the physiotherapy and the other matters specified in section F of the minutes, the PCT should not fund them. It recommended a review of the psychotherapy given by Dr Sinason and that the review be completed by May (it is stated in the minutes 2006, but that must be a typographical error) 2007.

The Grounds upon which permission is sought

[28]It is first argued that the recommendation of the multi-disciplinary team was flawed. This is said to be so for two reasons. First, the views of the team were inaccurately recorded and communicated to the Panel. Secondly, the multi-disciplinary team did not apply the May 2006 eligibility criteria. It appeared to have considered that the first stage (referred to as test 1 relating to the extract from the criteria which I have set out) could only be satisfied if an individual's health care needs satisfy all the indicators, ie complexity, intensivity, instability and speed of deterioration (although the criteria state that these are "and/or" factors).

[29]Secondly, it is submitted that the Panel's decision was flawed. It is argued that the Panel did not take account of and consider all the relevant material, that is the reports of Dr Land and all the other reports and statements referred to in paragraphs 24-60 of the grounds. I believe that I have referred to the authors of all those reports, but I certainly have referred to the bulk of them. It is also submitted that the Panel did not take into account daily records relating to PE and her behaviour. Although Miss Richards did not abandon the claim that all these reports and statements should have been before the Panel and considered by them, her submissions concentrated on Dr Land's report.

[30]The second way which it is submitted that the Panel erred is that it is said that the Panel's approach to the criteria was flawed. The detailed grounds challenge the approach taken by the Panel to each of these criteria. For example, paragraph 102 of the detailed grounds states:

"When considering the question of the complexity of PE's needs, the Panel looked at three factors: challenging behaviour, reviews of medication and supervision of staff. The Panel failed to consider the unique nature of PE's condition, its interaction with her learning disability, her autistic spectrum-like behaviour, the need for 24 hour care and at a level of 3:1 or 2:1, her psychological and emotional needs, her impaired communication and cognitive functioning and her need for assistance or support with all aspects of daily living and functioning."

[31]Thirdly, it is submitted that the Panel's approach to sharing funding responsibility was based on a misapplication of its own criteria because "requiring sufficient health inputs" was said to be partially, but by no means completely, met.

[32]Fourthly, it is submitted that, given PE's condition, which was described as "unique, complex and fluctuating", the conclusion that her needs are not the responsibility of the PCT is irrational. Miss Richards submitted that there has not been a more serious case of DID than PE's; and that if her needs are not health care needs, then no one with mental disabilities would have such health care needs.

Discussion and Conclusions

[33]I turn to Mr Knafler's submissions on behalf of the defendant and my conclusions. The defendant submits that permission should be refused because of the claimant's delay and conduct. The claim was not made promptly and not made within three months of the decision of 30 November 2006. No reason is given in the claim form for extending time. Moreover, it is said that the claimant failed to comply with the pre-action protocol because the letter before action did not specify which passages should have been considered in the reports which were not considered, and the claimant refused to specify them when requested.

[34]As Mr Knafler's skeleton argument states, it is "trite" law that time runs from the date of the decision. But it is not in contention that the decision made on 30 November was not communicated to the claimant in a written form until 22 December. There was a brief oral communication earlier in December that the decision was "adverse". The documentation on which the Panel had relied was not provided to the claimant until 10 January 2007. In these circumstances at the leave stage I do not refuse the application on the grounds of delay.

[35]The main thrust of Mr Knafler's submissions on behalf of the defendant concern the unarguability of the proposition that the Panel had fallen into public law error. First, he submitted that there is no challenge to the lawfulness of the PCT's eligibility criteria and he submits that the challenge to the Panel's decision is not (see paragraph 12 of his summary grounds) a proper subject for conventional judicial review because of the expertise of the Panel. I reject this argument. First, the authorities on which Mr Knafler relies go no further than saying that some decisions undertaken by public bodies attract a more restrained approach by a reviewing court because of what can be called relative expertise, justiciability or institutional competence: see, for example, what Lord Bingham of Cornhill CJ (as he then was) said in R v Cambridgeshire Health Authority, ex parte B

[1995] 1 WLR 898

. Here, however, the claimant's submission is not only of irrationality, but also that criteria were misapplied and relevant matters not taken into account. That falls within classical judicial review principles. In respect of pure irrationality, what underlies Mr Knafler's submission may have some force, but it is not that the court cannot exercise review on the grounds of irrationality; it is that, given relative expertise, the court would be reluctant to do so, save in the strongest case.

[36]Secondly, as far as expertise is concerned, here the dispute is between two public bodies, each charged with responsibility for a distinct area and each with no power to act outside that area. The considerations differ where the court has to adjudicate between two such bodies, as opposed to where it is adjudicating on a challenge by a citizen or other person to the decision of an expert body. I accept that, for the reasons given in paragraph 14 of Mr Knafler's skeleton argument, the PCT's role in considering the question of health care is primary in the light of the way the legislation is framed. But if the court was to stand back from the decisions of one body (the PCT) because of the expertise of it or its Panel as to what constitutes health care, should it also stand back from the decisions of another body (the Council) because of its expertise as to what constitutes social care? The claimant has not sought to withhold care from PE on the grounds that her requirements are health care needs. After all this time to do so would, prima facie, be extremely difficult to justify. But if it did, Mr Knafler's arguments would mean that the court would be left faced with two experts in their own fields who came to a different conclusion. Where the conclusion is as to the demarkation of the two different fields, the court would have no alternative but to do its best to make a decision on the matter brought before it.

[37]Having said that in respect of Mr Knafler's first substantive submission, I do not consider that, despite their length, detail and the vigour with which the grounds were advanced, this case should proceed to a full hearing.

The criticisms of the multi-disciplinary team

[38]As far as the multi-disciplinary team stage of the process is concerned:(a) the views of the individual multi-disciplinary team members on each of the questions (the three tests) were in the minutes and those minutes were before the Panel which could form its own view as to whether the summary was or was not misleading; and

(b) the multi-disciplinary team was not the deciding body but only a recommending body. Even if it considered the older criteria and the older criteria were, as Miss Richards argued, too restrictive, the Panel considered the relevant and uncriticised criteria. To establish arguablility on this ground, it would have to be shown that the error of the multi-disciplinary team tainted the decision of the Panel in circumstances where the Panel had the correct criteria before them and considered the issues themselves at a four hour meeting. It is difficult to show this. They reached different conclusions from those recommended by the multi-disciplinary team. Their conclusions are based on their assessment of the relevant criteria. In any event, the criticism of the Panel's application of the criteria is not that they fell into the error that it is said the multi-disciplinary team fell; it is different.

The criticisms of the Panel's decision

[39]It would be extraordinary if a panel charged with considering an individual's health care eligibility on a particular date is obliged to read all reports produced about that individual, however many there are, whatever purpose they were commissioned for, whenever they were produced (here they spanned a seven year period), and whatever sifting process has been used. Miss Richards submitted that they did not have to take everything into account but they had to consider the relevant parts. The question that arises is: if they were required individually to consider the relevant parts, how could they do so without reading all the reports?

[40]In relation to the submission that the Panel failed to take into account relevant material, I accept Mr Knafler's reliance on the statement by Laws LJ in R(Jones) v North Warwickshire Borough Council

[2001] EWCA Civ 315

, paragraph 20, that where the operative statute does not provide a lexicon of relevant considerations to which attention is to be paid, the decision-maker "must decide for himself what he will take into account. In doing so he must obviously be guided by the policy and objects of the governing statute, but his decision as to what he will consider and what he will not consider is itself only to be reviewed on conventional Wednesbury principle".

[41]I turn to the second submission. There was no question of delegation of the decision-making power by the Panel. It is, in my judgment, not arguable that the sifting process used, involving as it did the compilation of assessments by professionals in relevant disciplines, after considering all the available reports, the discussion of those assessments and the making of a recommendation is Wednesbury unreasonable. This is particularly so given the consideration the Panel gave to the question whether additional material was required and whether the best interests reports would materially add to the evidence. This consideration was informed by the three Panel members (40% of the Panel) who had read the best interests reports. The suggestion that there was an improper delegation of fact-finding or an assessment function to either the multi-disciplinary team or to the three members of the Panel is entirely misplaced. The passages from the judgment of Sedley LJ in R(National Association of Health Stores) v Department of Health

[2005] EWCA Civ 154

, on which Miss Richards relies, concern a person making a decision on a matter he knew nothing about. That is not this case. Three members of the Panel read the best interests reports and could inform the others. The others were entitled to use that knowledge in making up their minds. The reports were available should any Panel member have wanted them. In considering this point, it is important to examine precisely what Sedley LJ said. He stated that a decision-maker is not required to know everything that is relevant; a decision-maker is only required to know enough to ensure that nothing that it is necessary for him to know is left out of account. His Lordship relied on the decision of the High Court of Australia in Ministry of Aboriginal Affairs v Peko-Wallsend

[1986] 162 CLR 24

: see paragraphs 30-31 of the High Court's decision and paragraphs 29, 73 and 88 of Sedley LJ's. As to the entitlement to use the knowledge of others, see his reference to R v Secretary of State for Education, ex parte S

[1995] ELR 71

at 85 (per Peter Gibson LJ). The effect of Sedley LJ's judgment is that what has to be brought to the decision-maker's attention are the salient facts which give shape and substance to the matter -- facts of such importance that if they are not covered it could not be said that the matter was properly considered (see paragraph 61 and 88, and the Peko-Wallsend case at paragraph 61). It is not arguable that the approach of the Panel fell into error in this regard.

[42]I turn to the submission that the Panel's approach to the criteria was flawed, both individually and because it did not consider the cumulative effect of PE's position and needs. The minutes make it clear that the Panel stood back and looked at the case in the round: see section E. That they did this is confirmed by the witness statements of Mr O'Gorman, Miss Starky (the long-term care manager) and Miss Wardle (the presenting manager).

[43]As to the factors concerning the individual criteria that the claimant submits were not considered, for the reasons given in the defendant's Summary Grounds at paragraphs 19 and 32, I do not consider that the Panel failed to accord them sufficient weight.

[44]Finally, I turn to the Wednesbury irrationality challenge. From what I have said so far, it will be apparent that I do not consider this to be arguable. What has to be shown is that it is not arguable that PE's needs are not primarily health care needs. It is at this point that Mr Knafler's reliance on the expertise of the Panel is legitimately deployed. The considerable expertise of Panel members, particularly Dr Margison and Miss Ingham, is evident. They considered PE's case unusual, not unique; and they considered that the complexity resulted from the breakdown in relationship between her and the Council rather than something intrinsic to her care needs. Given their expertise, it is not possible to say that the first consideration is arguably irrational. Given the history of the matter, it is not possible to say that the second consideration is arguably irrational. Indeed, the fact that they sought to prevent themselves from being infected by matters that were properly before the court considering the best interests application, but were not properly the subject of their task, suggests an entirely proper approach.

[45]Secondly, the Panel's decision is consistent and reflects the overall recommendation of the multi-disciplinary team. It is also consistent with the other bodies and experts who have had dealings with PE: see the references in paragraphs 21-28 of the Summary Grounds, including the significant passages from the reports in the best interests proceedings. The assessor's reports clearly indicated a record of aggression and self-harming behaviour shown in the best interests reports. Such conduct, it was said, had reduced in the months before the assessment. Mr Gillett went to the home, discussed the case and formed the view, having looked at the diaries, that this was the position. He was entitled to do so. The assessor's reports made it clear that staff would benefit from some extra training in the administration of medicine and it is not arguable that they were flawed in reaching that conclusion.

Conclusion

[46]I have considered this application on the classical approach taken at the permission stage: arguability. In the light of the fullness of the documentation before the court and the extent of the oral submissions, the case is a suitable one for the application of the enhanced test suggested where there has been a full permission hearing. I emphasise, however, that that is not the test I have applied.

[47]An additional reason for not allowing this case to proceed is that it is difficult to see what point would now be served by a judicial review. Mr Knafler has brought to my attention the fact that the national framework for NHS continuing health care was introduced in June 2007. At present its status is guidance; but from 1 October 2007 it will be a requirement for all continuing care decisions. Accordingly, had there been an arguable case, had the matter gone to review, and had the claimant succeeded, it would have been necessary for any reconsideration by the Panel to consider the matter in accordance with the national framework. It will still be necessary, unless the review takes place before October, for the Panel to do so.

[48]I was asked on behalf of the claimant whether I would reserve the question of costs and ancillary matters to written submissions. Miss Greany is here today. Is that still the position?

[49]MISS GREANY: It is the position, my Lord.

MR JUSTICE BEATSON: What do you say, Mr Knafler?

[51]MR KNAFLER: Well, in relation to the principle of costs, the position would seem to be clear. We should have the costs in our schedule which do relate to the Acknowledgement of Service. In terms of the amount of costs, we understand that a normal summary assessment takes place. Those instructing me are anxious for an assessment, however broad the summary, to take place so that they can draw a line under these proceedings.

[52]MR JUSTICE BEATSON: Mr Knafler, we have drawn a line under the proceedings. There may be a small space of white at the bottom, unless the Court of Appeal goes elsewhere. It was not clear to me yesterday whether it was going to be possible for anybody to attend on behalf of the claimant and so I indicated that I would look on that favourably.

[53]MISS GREANY: My Lord, I have spoken to Miss Richards and she indicates that she will be able to deal with submissions very quickly within a couple of days.

MR JUSTICE BEATSON: I resist from commenting: I hope that is not a couple of days in court?

[55]MISS GREANY: No, no. She could produce her submissions in writing.

[56]MR JUSTICE BEATSON: The claimant has lost and is in principle liable for the costs of the defendant preparing its Acknowledgement of Service. In view of the length of the documentation and the extent of the hearing, the fact that the claimant itself took up well over twice the time allocated to the entire hearing -- understandably, in view of the volume of documentation; but perhaps partly because of an unwillingness to discard any point -- it is arguable that this is the sort of case where the defendant is entitled to the costs of attending at the hearing. The defendant is here because Munby J resisted the temptation to refuse permission on the papers.

[57]This is my last day here until the beginning of term. I am going to give the claimant until the end of next week to make submissions about costs, and I am going to give the defendant a further seven days to respond -- both sending copies to all of us. I will then make a decision on the papers, unless the submissions include a request for an oral hearing.