JF, R (on the application of) v NHS Sheffield Clinical Commissioning Group [2014] EWHC 1345 (Admin)

Case No CO/7632/13[2014] EWHC 1345 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Sitting at the Manchester Civil Justice Centre
1 Bridge Street West
Venue Manchester, Greater ManchesterDate 02/05/2014
M60 9DJ
Before
THE HONOURABLE MR JUSTICE STUART-SMITH
Between
The Queen on the application of JF (by her litigation friend RW)ClaimantNHS Sheffield Clinical Commissioning GroupDefendantSheffield Teaching Hospitals NHS Foundation TrustInterested Party
Helen Mountfield QC and Chris Buttler (instructed by Irwin Mitchell) for ClaimantNeil Garnham QC and Jeremy Hyam (instructed by Browne Jacobson LLP) for DefendantVictoria Butler-Cole (instructed by DAC Beachcroft LLP) for Interested PartyHearing Hearing dates: 4 April 2014
Judgment

Introduction

[1]These proceedings concern the question of responsibility for the provision of necessary services when a person who has been receiving NHS Continuing Healthcare (“CHC”) in the community is admitted to hospital.[2]The Defendant (“the CCG 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. ”) is responsible pursuant to s. 3(1) of the National Health Service Act 2006 (“the 2006 Act”) for arranging for the provision of healthcare as there described. The Claimant is a person who has complex healthcare needs. She has significant respiratory problems; but what makes her case more complicated is that she acquired a brain injury as a result of a road traffic accident when she was a child and now suffers from learning difficulties and bipolar affective disorder. She is in receipt of a CHC package funded by the CCG, which has enabled her to live at home for much of the time since July 2012. A constituent part of her package when at home is that 1:1 supervision and support is provided 24 hours a day. On a number of occasions she has been admitted to hospital in Sheffield. The Interested Party (“the STH”) operates its hospitals under the terms of commissioning contracts agreed with Clinical Commissioning Groups including the CCG. At the time that these proceedings were issued, the STH did not provide 24 hour a day 1:1 supervision during the Claimant’s admissions to hospital, it then being the STH’s assessment that the Claimant did not require 24 hour a day 1:1 supervision in a hospital setting and that the monitoring and supervision that she received while on the ward was sufficient.[3]The Claimant’s family were concerned at the standard of care being provided to the Claimant by the STH when she was in hospital, believing that a number of incidents would not have occurred had 24 hour a day 1:1 supervision been provided in hospital as well as when the Claimant is at home. None of the incidents that have been the source of concern to the Claimant’s family has caused the Claimant to suffer significant injury. In March 2013 the Claimant’s solicitors sent a letter before claim, complaining that the CCG was suspending funding for her package of care in the community when she was admitted to hospital. The effect of this suspension was that the carers who provided 24 hour a day 1:1 supervision and support when she was living at home were not accompanying her when she was admitted. After these proceedings had been commenced, the CCG agreed to consider whether it should commission extra care when the Claimant was in hospital: the central complaint by the Claimant’s family at that stage was that 24 hour a day 1:1 supervision was not being provided.[4]On 22 July 2013 the CCG’s solicitors wrote to the Claimant’s solicitors providing the CCG’s decision. The decision was that the Claimant would not routinely receive her usual CHC funded package while in hospital. That decision is now challenged on three main grounds: 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.[5]These grounds of challenge do not immediately disclose what the Claimant now says is the question in the case, namely: which public body bears responsibility for assessing the Claimant’s needs in hospital, with a view to arranging appropriate support? Claimant’s skeleton argument at [14] The Factual Background The Claimant’s CHC package

The Factual Background

[6]The distinction between the provision of health care and social care is ill-defined but central to the allocation of responsibility between health authorities, who are primarily responsible for the provision of health care, and local authorities, who are primarily responsible for the provision of social care. The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care is where the Department of Health sets out the approach that will be adopted when deciding which treatment and other health services it is appropriate for the NHS to provide under the 2006 Act and to distinguish between those and the services that local authorities may provide under s. 21 of the National Assistance Act 1948 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. . The National Framework includes two concepts that are critical to understanding the National Framework itself and what has happened in this case. Those two concepts are “NHS Continuing Healthcare” and “primary health need”.[7]“NHS Continuing Healthcare” is defined in the National Framework At page 122. Similar descriptions appear elsewhere in the document. as “a complete package of ongoing care arranged and funded solely by the NHS, where it has been assessed that the individual has a “primary health need”. It can be provided in any setting. Where a person lives in their own home, it means that the NHS funds all the care and support that is required to meet their assessed health and care needs. Such care may be provided either within or outside the person’s home, as appropriate to their assessment and care plan. …”[8]The test for eligibility for CHC is whether a person has a “primary health need.” The consequence of having a primary health need is that the CHC to be provided by the NHS may include services that would in other circumstances be provided by local authorities as social care. Thus “Where an individual has a “primary health need”, the NHS is responsible for providing all of that individual’s assessed health and social care needs – including accommodation, if that is part of the overall need.” National Framework at [33] The term “primary health need” is a concept developed by the Secretary of State. It does not appear and is not defined in primary legislation; but it is referred to in Rule 21 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012. Rule 21(7) requires that “in deciding whether a person has a primary health need … [the CCG] must consider whether the nursing or other health services required by that person are(a) where that person is, or is to be, accommodated in relevant premises, more than incidental or ancillary to the provision of accommodation which a social services authority is, or would be but for a person’s means under a duty to provide; or(b) of a nature beyond which a social services authority whose primary responsibility is to provide social services could be expected to provide, and, if it decides that the nursing or other health services required do, when considered in their totality, fall within sub-paragraph (a) or (b), it must decide that that person has a primary health need.”[9]In order to inform consistent decision-making, the Department of Health has “developed the national Decision Support Tool (DST). The DST supports practitioners in identifying the individual’s needs, which, combined with the practitioners’ skills, knowledge and professional judgement, should enable them to apply the primary health need test in practice, in a way that is consistent with the limits on what can lawfully be provided by a [Local Authority], in accordance with the Coughlan and the Grogan judgements.” National Framework at [40]. I refer to the Coughlan and Grogan judgments below.

Exceptionality criteria

[10]As these extracts from the National Framework and the commissioning rules indicate, the primary health need test is directed to the interface between health care and social care services; and the result of a finding that a person has a primary health need and is therefore eligible for CHC is that the NHS takes over responsibility, as part of its package of CHC, for providing services (including accommodation) which would normally be regarded as social care that is appropriately to be provided by the local authority. Where that happens, the social care element shall not be duplicated by the local authority. It can therefore be deduced that CHC is a concept that will generally be applicable where a person requires accommodation or services which are to be met on a continuing basis in circumstances where, but for the person’s health needs, it would be the responsibility of the local authority to provide the person with accommodation and services. It follows that, although the National Framework states that “eligibility for [CHC] places no limits on the setting in which the package of support can be offered” National Framework at [13] , CHC will generally be geared to the provision of care other than in an acute hospital context.[11]In March 2012 the Claimant was living at Willowbeck Nursing Home in Sheffield where she had been since 2000. She wanted to move home and had been requesting a move for about 10 years. Her DST was reviewed. The reviewer took into account her Nursing Notes, Nursing Care Plans, Risk Assessments, a Psychiatric Report, an Occupational Therapy review and a Speech and Learning Therapy review. The key professionals involved in her care were listed as including a PEG dietician, a consultant psychiatrist and a consultant respiratory physician. Information was obtained from multiple sources including her consultants. The DST shows that very thorough consideration was given to the Claimant’s condition and needs on many fronts including her behaviour, cognition, nutrition, continence, skin, breathing, and drug therapies and medication. The summary pen portrait of the Claimant included that she had a residual brain injury leading to a degree of learning disability; and that she “has a diagnosis of Rapid Cycling Bipolar (1990), Asthma, COPD Chronic obstructive pulmonary disease , Swallowing problems, angina and challenging behaviour.” The body of the DST recorded that the Claimant was “on 1:1 observations for 24 hours to manage her challenging behaviour.” Her challenging behaviour was described and the triggers for it identified as being when she was asked to do something she did not want to do, when boundaries were maintained, when her mood is elevated or when she experiences frustration. One aspect of her challenging behaviour was recorded as demanding food and drink although she was meant to be provided with nutrition through her PEG because of her swallowing difficulties. These difficulties were described in the nutrition section: she “has known swallowing problems and is currently nil by mouth. [She] was aspirating when she was eating and drinking, she is now fed via a PEG as a result.”[12]There is no suggestion that the DST was not a competent, thorough and accurate assessment of the Claimant. There is evidence that the frequency of the Claimant’s admissions to hospital has since increased. However, there is no evidence to suggest, let alone prove, that the Claimant’s condition has changed such that the DST has ceased to be an accurate assessment of the Claimant’s current condition and behaviour, particularly in relation to her challenging behaviour, the fact that she is assessed as being nil by mouth, and the reasons for that assessment. On the contrary, in a statement made in support of the Claimant’s initial application for judicial review, made on 18 June 2013, her cousin summarised her needs in terms that closely mirror those of the DST as being “Bipolar Effective Disorder, acquired brain injury as a result of a road traffic accident when she was 8 resulting in a mild learning disability, significant respiratory problems which have require[d] hospital admission over the years often leading to need to avoid the risk of her aspiration pneumonia, and some challenging behaviour.”[13]After, and doubtless as a consequence of, the DST the Claimant was discharged from Willowbeck Nursing Home in July 2012 and was able to return to live at home with the benefit of a CHC package.[14]The evidence before the Court includes a “Continuing Health Care, Care Package Pro Forma” which was completed on 3 June 2013. It is apparent from the document that there had already been a care package in place, that the Claimant was currently in hospital, and that the immediate purpose of the document was to request a care package that was similar or identical to that which had been in place before her admission. It is the best evidence of the thinking that informed her CHC packages from the time of her discharge from Willowbeck Nursing Home, which was “to provide 24 hour care and support to [the Claimant] to ensure she is safe in her own environment. To provide Peg care, BiPap care Care specific to the Claimant’s respiratory problems. and use Telehealth Using equipment for health monitoring. on a daily basis.” The proposed package (which matched the previous one) was for 24 hour 1:1 care. It is therefore clear that 24 hour 1:1 care was provided for the Claimant after she was discharged from Willowbeck Nursing Home and went to live at home, and that the purpose of that care being provided was to enable her to live at home, in her own environment. It did not purport to address her care needs in the event of an acute admission to hospital.

The origins of the dispute

[15]When the Claimant had been admitted to hospital from the Nursing Home, her carers would go with her and stay for the duration of her admission. Since she has returned to live at home, the carers provided by the CHC package that was provided to enable her to live safely at home have not stayed with her during her admissions to hospital. The basis of the initial letter of claim on 19 March 2013 was that the CCG was maintaining a policy “that in the event that [the Claimant] is required to be admitted for treatment in hospital, funding of her current care package will be suspended pending discharge, with the result that the provision of care by the established care team is interrupted to the detriment of [the Claimant]”.

Conclusion

[16]The CCG’s reply on 20 March 2013 was neatly summarised at the outset:
“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].”
[17]Despite repetition and refinement of the parties’ positions in subsequent correspondence, no resolution of the dispute was achieved and the Claimant issued these judicial review proceedings on 19 June 2013. The basis of the challenge was stated to be that “the Claimant challenges the lawfulness of the Defendant’s view that it is ultra vires to provide carers to the Claimant whilst she is admitted to hospital as set out in the Defendant’s letter dated 20 March 2013”. The Grounds of Challenge alleged:
“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.”
[18]The judicial review proceedings as originally issued were supported by a first witness statement from the Claimant’s cousin, who identified a number of incidents which caused her concern and which she considered would not have happened had her carers been present 24 hours a day. A number of incidents involved the Claimant having access to food or drink and, on some of those occasions, taking them by mouth. There is no evidence that any of these incidents led to significant harm. That does not detract from the fact that the Claimant was meant to be nil by mouth because of an assessed risk of aspiration pneumonia; but it is a feature of the case that there is no medical evidence adduced by the Claimant, and her cousin’s evidence makes clear that her assessment of the Claimant’s condition and the risks to which she was exposed was not always shared by the professionals having care of the Claimant while she was in hospital. The Court does not independently have the expertise to assess the severity of those risks except at an extreme level of generality.[19]It can immediately be seen that there was a disconnect between what the CCG had been saying in correspondence and the claim that was being brought on behalf of the Claimant. The essence of the CCG’s position was that the funding it provided for when the Claimant was in the community was not designed or appropriate for when she was in hospital and that when the Claimant was in hospital it was for the STH to decide how her needs should be met in that setting and to provide them. The Claimant’s case was that, since the CCG had determined that the Claimant needed 1:1 supervision it was thereafter under a duty to provide it. This assertion ignored the fact that (as had already been pointed out in correspondence) the CCG’s determination was made in the context and for the purpose of enabling the Claimant to live at home and was not made in the context or for the purpose of her care when in the specialist and different environment of a hospital.[20]By its summary grounds of opposition, which were served on 5 July 2013, the CCG accepted that it would not be ultra vires for it to commission additional care in a hospital setting. It attempted to clarify its position, as follows:
“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”
[21]The Claimant’s response was to latch on to the CCG’s acceptance that “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)”. By a letter sent on 11 July 2013, her solicitors asked the CCG to agree to provide her “with a decision as to whether it is willing to exercise that power in her favour and, if it refuses to do so, to state its reasons for refusal, together with any policy or guidance on which it relies.” Agreement on this course was quickly reached: a draft consent order signed by the parties on 12 July 2013 laid the ground for the decision which is now challenged and for steps to be taken to progress these proceedings if the CCG’s decision was not satisfactory to the Claimant.

The challenged decision of 22 July 2013

[22]The CCG’s decision was taken by a panel of three, namely its clinical director, its finance director and a lead nurse. The decision was provided to the Claimant by a letter from the CCG’s solicitors dated 22 July 2013. Relevant extracts are set out at Annexe A to this judgment. The following points emerge: 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 [1] and [2]; 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 [3] and [4]; 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 [5]; 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 [6]. 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 [2]; vi) The core paragraphs are at [7]-[9], 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 [7] 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 [9] 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 [10]-[13] 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 [16]. 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.”[23]When the Claimant’s solicitors requested further information they were told that the panel had been aware of the family’s concerns, which were reported to the panel by the CCG’s Head of Clinical Services, with reference to the complaint that was understood to have been made to the STH about the quality of care provided by them to the Claimant: the panel had not read the witness statement of the Claimant’s cousin. In addition, they were aware that the STH had indicated that it could meet the Claimant’s needs and that it was able to arrange additional support, where it believed that to be necessary, without recourse to the CCG. That was subsequently confirmed again, shortly after the decision. It has been the CCG’s position throughout that it is for the STH to determine the Claimant’s needs whilst in hospital.

The amended claim

[24]Those acting for the Claimant were not satisfied with the CCG’s response and lodged amended grounds for judicial review on 8 August 2013. Where previously the Claimants grounds had said that the “single, narrow but important question” raised was “does a CCG retain responsibility for meeting the individual’s assessed eligible needs if and when she is admitted to hospital?”, the issue that was now said to be raised was “what is the nature and extent of [the CCG’s] duty to meet the Claimant’s needs and safeguard her welfare during periods of hospitalisation?” Two points may be noted. First, the Claimant asserted that “the question for [the CCG] was whether it was necessary for the care provided as part of the standard package purchased from the hospital to be supplemented in order to meet the Claimant’s needs and safeguard her welfare.” This was based upon a misunderstanding of the arrangement between the CCG and the STH which was that the CCG would pay a standard rate but that there was no such thing as a standard package of care offered by the STH, since the care it provided was meant to be tailored to each patient’s needs. Second, where previously the grounds had asserted that “the hospital is not equipped to provide the Claimant with the 24 hour 1:1 support she is assessed to need”, the Claimant now criticised the CCG’s decision not to provide additional funding or CHC funded care on the grounds (amongst others) that “it did not identify or consider the level of support with which the Claimant was actually provided in hospital.” The grounds of challenge were now formulated as set out at [4] above.[25]The basis of the CCG’s response to the Amended Grounds may be shortly summarised. First, it had assessed the Claimant as needing for 24 hour 1:1 care in a community setting and not in a hospital setting. Second, it was the duty of the hospital (and not the CCG) to assess the Claimant’s needs whilst in hospital and the CCG is entitled to rely upon it to do so without undertaking specific enquiries or investigations in respect of any such assessment or any complaints of mistreatment that the Claimant might have in respect of the hospital.[26]The STH’s view of its responsibilities, as set out in its Acknowledgement of Service, is essentially the same as that of the CCG. Specifically, it accepted that:
“It owes a general duty under section 62 of the [2006] 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.”
And that:
“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.”
[27]While not being joined as an Interested Party to the proceedings, NHS England provided a short submission setting out its views, which were in all material respects the same as those being advanced by the CCG and the STH. One paragraph may be taken as indicative of the tenor of the document:
“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.”
[28]Since the amended pleadings were served, the STH has carried out a detailed risk assessment on 11 November 2013. It concluded that it should provide 1:1 supervision for the Claimant at all times when she is in hospital, not because she always needs it but because her condition is changeable and it cannot be predicted when she will need it and when she will not.[29]The Claimant’s cousin has provided two further statements (dated 25 November 2013 and 2 April 2014) in which she gives evidence about further occurrences that have given her concern when the Claimant has been in hospital and from which she deduces that the hospital has not been able to put in place arrangements continually to monitor the Claimant during her admissions. In addition, a statement from Beverley Dawkins OBE, Specialist Adviser to Mencap, provides evidence that persons with learning difficulties requiring a CHC package are likely to require additional support in hospital, although this will depend on each person’s individual needs as assessed. She says that the risk to vulnerable people is premature mortality and that it is important that a specialist package should be in place with trained carers, and that it should be portable (giving as an example that a person’s regular carers could remain with them in hospital for part or all of the day).[30]The STH has submitted evidence from a respiratory matron based at the hospital. She is responsible for the respiratory inpatient service which includes wards and the nurse specialist service that supports them. She is very familiar with the Claimant, being the matron of the wards to which the Claimant is frequently admitted. The regime of constant supervision has been introduced despite the fact that it is not needed for the great majority of the time that the Claimant is in hospital. In addition, the STH ensures that the Claimant is always admitted to a ward that is already familiar with her needs, and has put other measures in place specifically for the Claimant’s safety and comfort. She gives evidence that, when a complaint was made that the Claimant had wrongly been given food and drink in the discharge lounge in January 2013, the complaint was investigated and an apology made, in accordance with established and proper procedures.[31]It is not suggested that any aspect of the Claimant’s health needs when in hospital should be beyond the competence of the hospital, as was made clear by her Leading Counsel in the course of oral submissions. It is and remains the STH’s case and evidence that it has sufficient resources and expertise to provide for all of the Claimant’s needs when in hospital and that if extra resources needed to be applied it would be in a position to provide them: the reason why it has not asked the CCG for additional resources is because it does not consider it necessary to do so. There is no reason to doubt this evidence.

The Legal Framework

[32]The obligation to commission health services (including NHS Continuing Healthcare) is imposed on CCGs by s. 3 of the 2009 Act, which provides:
“(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, (d) … (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. …” (a) hospital accommodation, (b) other accommodation for the purpose of any service provided under this Act, (c) medical, dental, ophthalmic nursing and ambulance services, (d) … (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. (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. …”
[33]Section 9 of the 2006 Act provides the mechanism by which CCGs may commission health services. Section 9(1) of the 2006 Act defines “NHS contracts” as “arrangements under which one health service body (“the commissioner”) arranges for the provision to it by another health service body (“the provider”) of goods or services which it reasonably requires for the purposes of its functions.”[34]The CCG is a commissioner and the STH is a provider within the meaning of s. 9(1). The CCG contracts with the STH for the provision of hospital services, as envisaged by s.9(1). Their contract incorporates NHS Standard Conditions of which the most relevant for present purposes are: “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; and1.1.2 the Law; and1.1.3 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; … SC4 Co-operation … 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 Needs8.1 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.” 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 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; SC4 Co-operation 4.3.1 the Commissioners; 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.

SC4 Co-operation

[35]The obligation imposed by Service Condition 2.1.1 to “comply, where applicable, with the registration and regulatory compliance guidance of any relevant Regulatory or Supervisory Body” has the effect of requiring compliance with the Care Quality Commission’s standards. Those standards require that a patient: 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.[36]The significance of Service Condition 8.2 is that it imposes an obligation upon a provider such as the STH to notify a commissioner such as CCG if it believes that a patient (described in the Service Conditions as “Service Users”) may have an unmet health or social care need. Taken in combination with Service Condition 8.1, which imposes a responsibility upon a provider to ensure that a patient’s health and social care needs are met, it is clear that a provider must assess what those needs may be. It shall then meet them or, if it is not able to do so, must inform the commissioner which is then responsible for making an assessment to determine any steps required to be taken to meet those needs.[37]Service Condition 32 requires the provider to adopt and comply with safeguarding policies. Service Condition 35 is entitled “Duty of Candour” and requires the provider to investigate complaints or where it becomes aware of incidents involving moderate or severe harm to or the death of a patient that have occurred, or are suspected of having occurred. The relevant procedure includes an obligation on the provider to report such incidents to the commissioner. The STH does this and reports to CCG when it considers that the criteria for doing so are satisfied. The evidence provided by the respiratory matron at the hospital is that there have been no such incidents involving the Claimant during her admissions to the hospital. There is no reason to doubt that evidence.

Should the Court Intervene?

[38]I have traced the development of the dispute in some detail as part of the Factual Background because it demonstrates that the Claimant’s formulation of and approach to this public law claim has shifted materially with time. To some extent this is attributable to the CCG’s early stance that it would be ultra vires its powers for it to retain legal and practical responsibility for the Claimant’s care when she was in hospital. Viewed in isolation, this could have been regarded as confusing and wrong, since the CCG’s duties under s. 3 of the 2006 Act (whatever their precise ambit) cover the arranging for the provision of services including those provided by hospitals. However, the thrust of the CCG’s letter of 20 March 2013 was clear: the CHC package was directed to the Claimant’s care when in the community and not when she was in hospital; and it was for the hospital to assess and provide for her needs when she was admitted. In both of those assertions, the CCG was, in my judgment, correct.[39]These proceedings continued after the decision of 22 July 2013 resting upon a fundamental misapprehension that is clear on the face of the amended grounds. In setting up the factual basis for the Grounds of Challenge, the Amended Grounds allege At [10(4)] and [34] that “the question for [the CCG when making its decision] was whether it was necessary for the care provided as part of the standard package purchased from the hospital to be supplemented in order to meet the Claimant’s needs and safeguard her welfare.” The claim was therefore predicated on the mistaken belief that the STH was only obliged to provide a standard package of care and that the standard package excluded the level of supervision that the CCG had decided was necessary when the Claimant was at home and that those acting for the Claimant considered (correctly, as the STH now accepts) was also appropriate in hospital.[40]The legal framework that I have summarised at [32]-[37] above is inconsistent and incompatible with the possibility of a hospital being responsible only for a standard package of care as envisaged by those acting for the Claimant. The requirement pursuant to Special Condition 1 that the provider must perform all of its obligations under the contract in accordance with its terms and the law and good practice on its own incorporates an obligation to discharge its private law duty of care to the Claimant. The obligations imposed by Service Condition 2.1.1 are similar to those imposed at common law: see [35] above. It is a startling feature of the presentation of the Claimant’s case that it appears to neglect the existence of the STH’s common law private duty of care entirely. This neglect may have been the result of a misapprehension about the scope of the private law duty and the remedies it affords: at one point it appeared to be submitted that injunctive relief was not a feasible remedy at private law because the tort of negligence requires the infliction of harm sufficient to constitute actionable damage and that it would be unacceptable to wait for such harm to have occurred before applying to the Court for relief. Unsurprisingly, this was not a submission that was advanced by either the CCG or the STH and it is wrong: see Clerk & Lindsell on Torts, 20th Edn at 29-01 to 29-10.[41]The Claimant’s submissions at the hearing suggested that the Legal Framework to which I have referred does not require hospitals to carry out an assessment of the needs of mentally disabled patients. Claimant’s skeleton at [35]-[36] Such a proposition formed no part of the case advanced by the STH or the CCG. It has only to be stated to be seen to be quite contrary to the hospital’s obligations at common law and its contractual obligations. If anything, the fact that the Claimant suffers from mental disability imposes additional requirements upon the hospital to ensure that her needs are understood and met. The proposition is rejected.[42]Four points of distinction may be identified when comparing the Claimant’s present claim with her private rights at common law: 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.[43]Before turning to the formulation of the Claimant’s case it is convenient to list some of the matters that are not in dispute or are established despite an apparent dispute: 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 [2000] 2 WLR 622 at [26]; R(K) v West London Mental Health NHS Trust [2006] 1 WLR 1865 at [56]; 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 [2006] EWHC 44 (Admin) at [40]; 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.[44]It is also common ground that if the CCG were properly to consider that 24 hour 1:1 supervision was not necessary but the STH’s clinicians decided on the Claimant’s admission to hospital that it was, the hospital could and should provide it: this follows directly from the hospital’s private law duty of care. However, the Claimant submitted that if the CCG had properly considered that 24 hour 1:1 supervision was necessary but the STH’s clinicians on admission that it was not, then the CCG was under a duty to ensure that 24 hour 1:1 supervision was provided, thereby overruling the clinical judgment of the hospital. This submission is unworkable in practice and unjustifiable in principle.[45]The submission is unworkable in practice. It is to my mind self-evident that it would be not merely wastefully duplicative but also clinically inappropriate for the commissioner of services to attempt either to determine in advance or to second-guess how the hospital should meet a patient’s needs during the admission because(a) the hospital has the specialist expertise to assess those needs and is under a duty (both pursuant to its contract and at common law) to meet them and(b) the commissioner does not. There is no suggestion that the CCG’s panel that took the decision on 22 July 2013 was inadequately constituted; yet it is obvious that the CCG’s clinical director, finance director and a lead nurse cannot muster the same level of clinical expertise as is available to a hospital on a patient’s admission. It is no answer to submit that the commissioner should take the advice of the hospital and then decide what care should be provided. That process is simply not realistic in the context of admission to an acute hospital, given the unpredictability of a patient’s condition on admission and the need for speedy implementation of appropriate care. Even if it were realistic, it would again be wastefully duplicative of time and resources, both of which are precious commodities in a hard-pressed NHS.[46]The submission is not justifiable in principle. The CCG’s s. 3 obligation is to arrange for the provision of necessary services, not to micro-manage them. Where care in the community is being arranged which involves multi-disciplinary input, it may be necessary for the CCG to involve itself in detailed assessment of precise needs and how they are to be met in order to satisfy itself that there will be no gaps in the provision of services. Typically, as the label “NHS Continuing Healthcare” suggests, arranging the provision of services will require the commissioning of multiple tailored inputs over a protracted period. Even so, the CCG’s level of involvement need not be greater than necessary to satisfy itself that it has commissioned all necessary services, while leaving the day to day application of clinical judgment to providers within their sphere of expertise. The provision of acute hospital services is different. A hospital such as the one in this case is required to provide a wide and comprehensive range of services to very many patients having diverse needs that cannot be predicted at an individual level and that will frequently arise at short notice. If, as is the case here, the CCG has commissioned the provision of all hospital services as are necessary to meet the reasonable requirements of its patients, it will have discharged its s. 3 duty. It does not have to go further and direct the provider of the hospital services how it should treat individual patients.[47]I therefore reject the contention that the existence of its s. 3 duty imposed an obligation upon the CCG to determine how the Claimant should be treated when in hospital. I also reject the contention that the CCG was obliged to ensure that 24 hour 1:1 care was provided when the Claimant was admitted to hospital because it had been included in the regime established to enable her to live at home. It was for the STH, in the proper discharge of its contractual obligations and the private law duty that it owed to the Claimant, to determine what measures should be taken to look after her in hospital.[48]I consider it to be implicit in the terms of s. 3 of the 2006 Act combined with the existence of the STH’s undoubted private law obligations and explicit in the overall arrangements obtaining between the CCG and the STH that, provided the hospital has sufficient expertise and capacity, it is for the hospital and not the CCG to determine how individual patients, including the Claimant, are treated when in hospital. This approach is coherent: if circumstances arise as a result of which one regime (such as care in the community) ceases to be appropriate either temporarily or permanently, so that a different regime (such as care in a hospital) needs to be adopted there is no reason to think that the measures adopted under the first regime will be appropriate under the second. There is an obvious logic underpinning the arrangement: if a person is admitted to hospital, it is the hospital that will be best placed to assess how the person’s needs should be met during the admission. The commissioner does not have the same skills as the provider, which is why the commissioner commissions and the provider provides.[49]The proviso (that the hospital has sufficient expertise and capacity) is important. Where the provider believes that it cannot meet its patients’ reasonable requirements it is obliged by Special Condition 8.2 to inform the CCG and to request further resources. I would also accept that if it becomes apparent to the CCG that what it considers to be the reasonable needs of a person for whom it is responsible are beyond the expertise or competence of the provider, its s. 3 duty will give rise to an obligation to arrange for those needs to be met. But that is not the case here. In a case where it is common ground that it should be within the expertise and capacity of the STH to meet the Claimant’s reasonable needs, the evidence of the Claimant’s cousin cannot begin to displace the combined evidence of the CCG and the STH that the hospital has both the resources and the expertise to provide them. In other words, the CCG has fulfilled its obligation to arrange for the provision of the services by arranging for them to be provided by the STH. If and to the extent that the STH fails to provide the services, the Claimant has available the STH’s complaints system or, if the case is suitably serious, her private law remedies.

Ground 1: Tameside irrationality

[50]On a fair reading of the decision as a whole, the CCG asked itself the right question, namely “whether [the Claimant’s] needs, whilst in hospital can be adequately met by the relevant acute trust or whether additional, CHC funded care is required.” That was the correct question because, if the STH could adequately meet the Claimant’s needs, it was obliged to do so and there could be no justification for committing further funding.[51]The panel considered the available information, which included the detailed information in the DST, and concluded that there was “no reason why STH cannot meet your client’s assessed needs and provide her with safe and suitable care.” That was a conclusion which it was entitled and right to reach. The Claimant has asserted that the CCG should have looked at the Claimant’s up to date hospital records. I have read them. No entry or entries have been identified which suggest that the Claimant’s requirements are so complex that they are beyond the competence or the resources of the STH to meet them, and I am not able to identify any. Furthermore, it is now agreed that they should not be. The panel knew that in 2012 the hospital had considered it could meet all the Claimant’s needs, and no material change in her needs had been or has been identified. That being so, it was reasonable and rational for the CCG to take the view that it had already commissioned such services as were necessary and that the complaints being advanced on behalf of the Claimant, assuming them to be justified, were matters that went to the quality of care being provided by the hospital and not to the question whether sufficient services had been (or additional services needed to be) commissioned.[52]For the avoidance of doubt, it is plain on all of the evidence that, if 24 hour 1:1 care was required, it was included in the services that the CCG had already commissioned from the STH. I reject the submission that the decision was uninformed and made in blind faith. It was not. It was based on the information about the Claimant’s needs as detailed in the DST and the CCG’s knowledge of the hospital’s competence and capacity.

Ground 2: Breach of the positive operational duties under Articles 2 and 3

[53]This ground fails for a number of reasons that may be shortly stated: 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 [2012] 2 AC 72 at [12], [26] 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

[54]This ground is advanced on the basis that the CCG’s duty under s. 3 of the 2006 Act was “to provide the services it has assessed as needed to meet the Claimant’s needs” and that the CCG “has assessed the Claimant to need 24 hour 1:1 care and therefore has a duty to provide this.” For the reasons already given this is wrong on two counts. First, the CCG’s duty is not to provide services but to arrange for them to be provided. Second, it had not assessed the Claimant to need 24 hour 1:1 care in a hospital setting and there was no reason to assume that her needs in hospital would replicate her needs at home. The Claimant then alleges that, as is now accepted by the STH, the Claimant needs 24 hour 1:1 supervision when in hospital. It does not follow that the CCG’s failure to make an assessment of what her needs would be when in hospital constituted a breach of its s. 3 duty. What it was entitled to do and did on the facts of this case was to assess that the Claimant’s relevant needs were such that she may require the comprehensive services available in hospital, which it had already arranged. Since the proviso identified at [49] above did not apply, it had arranged for the provision of the services necessary to meet the claimant’s reasonable requirements.[55]This ground was originally advanced on the additional and mistaken basis that the CCG’s payments to the STH were for a standard and limited package of care Amended Grounds of Claim at [43] . That was not pursued at the hearing. Equally, the suggestion that the hospital’s provision of medical care would not include supervision because it was to be categorised as “social care” was rightly abandoned.

Alternative Remedies

[56]If those acting on behalf of the Claimant have concerns that her treatment in hospital is inadequate, they have the route of complaining to the STH in accordance with its established system. If the inadequacies are serious the Claimant has available the private law remedies that flow from the common law duty of care that the STH owes her. The Claimant has not shown that these alternative remedies are inadequate and I see no reason to conclude that they are.

The Claim is academic

[57]Although the formulation of the claim has developed as I have described above, its central concern was the failure to decide that 24 hour 1:1 care should be provided for the Claimant when she is in hospital. That concern has now been met. If and to the extent that the Claimant has any residual grounds for complaint it is that the STH is not implementing its decision seamlessly. That does not justify the continuation of this claim since it does not raise either the same or any related public law issues of substance. Leading Counsel for the Claimant submitted that the claim was not academic because it is important to answer what is now characterised as the question in the case, namely: which public body bears responsibility for assessing the Claimant’s needs in hospital, with a view to arranging appropriate support. That is and remains an academic question in a case where there is now no dispute about what is appropriate support or that the hospital should provide it out of the resources that have already been commissioned by the CCG. Leading Counsel submitted that the question might not be academic because the STH might change its mind about the appropriate level of support for the Claimant in the future. There are two answers to that submission. First, there is no reason to suspect that the STH will change its mind unless the Claimant’s condition changes (one way or another) because its current thinking is informed by a detailed risk assessment that will continue to apply. Second, if the STH were to change its mind the question might possibly cease to be academic (though this seems unlikely given the STH’s private law obligations) but it remains academic unless and until that happens. Conclusion[58]For the reasons set out above, I reject the grounds of claim.[59]If I were wrong in my analysis of the legal position and the Claimant’s grounds, I would exercise my discretion so as to decline either to quash the CCGs decision of 22 July 2013 or to make the declarations sought because(a) the Claimant has alternative remedies that are available to her and(b) the claim is academic.[60]This claim therefore fails. ANNEXE A This letter contains our client’s decision in relation to the provision of continuing healthcare (“CHC”) to your client when in hospital. … Decision

CONSENT ORDER

[1]The question of whether or not to provide your client with CHC when in hospital was considered by the Resource Panel (“the Panel”) of our client on 18 July 2013. A copy of their decision is enclosed. That decision was taken in accordance with our client’s policy CHC policy on the commissioning of care provision, a copy of which is also enclosed.[2]It is the decision of the Panel that your client will not routinely receive additional care in hospital. For present purposes “additional care” refers to the receipt of her usual CHC funded package whilst in hospital. If a change in your client’s needs is identified this decision will be reviewed. Basis of the decision Sheffield Teaching Hospital’s ability to provide suitable care[3]The most recent assessment of your client’s needs was carried out in 2011/2012, when she was in Willowbeck Care Home. The outcome of that assessment is set out in the Decision Support Tool (“DST”) dated 8 March 2012, a copy of which is enclosed with this letter. The assessment demonstrates that your client requires support in relation to her PEG feed, behaviour and other assessed needs.[4]The purpose of the DST was to establish your client’s care needs, as they were at the time the assessment was conducted and when your client was in residential care. Our client recognises that a review of your client’s needs must be undertaken and will commence such a review as soon as is practicable.[5]It is also accepted that your client’s needs may have changed since the DST was completed, given her change in circumstances. In particular, some of the challenging behaviour noted in the assessment was attributable to your client’s unhappiness at being resident within a care home. Since your client has returned home there has been a perceived reduction in her challenging behaviour. It was however that behaviour which led to the assessment that she required 24 hour, 1:1 support. Our client notes the conclusion on page 37 of the DST that “Joy’s overall needs are intense; Joy requires 1:1 care to ensure her safety and that of others due to her challenging behaviour”. This related to managing her behaviour, in the context of her residence at a care home. The 1:1 support found to be required was observational, and it is considered that your client’s behavioural issues can be managed by STH. In relation to your client’s clinical needs, our client has received a letter from your client’s consultant stating that the condition of your client’s chest has improved to such an extent that she no longer needs the cough assist.[6]A review would also enable a multi-disciplinary team to determine the extent and nature of your client’s current needs and assist our client in identifying whether there are any exceptional circumstances that might warrant the provision of CHC funded care while your client is in hospital. On the basis of the information currently available, the Panel has decided that no such circumstances exist. The Panel have however agreed to review their decision should the review indicate that your client’s needs have changed.[7]On admission to Sheffield Teaching Hospitals (“STH”) your client’s needs are likely to have changed, on the basis that if they had not she would not require hospital care. Some of her needs will inevitably continue whilst she is in an acute hospital setting; however the hospital concerned will make the necessary provision for her care, as they would for any patient who has been admitted.[8]Therefore the question that our client has considered is not whether your client will receive 1:1 support whilst in hospital, but whether her needs, whilst in hospital, can be adequately met by the relevant acute trust or whether additional, CHC funded care is required. This is a question requiring consideration of the capacity of STH to meet your client’s needs, as identified in the DST. Complaints about the services provided to your client by STH are questions of quality as opposed to capacity. Our client will only provide additional care where there is a shortfall in capacity such that a patient’s assessed needs can only be met by the provision of such care, and where the exceptionality criteria are satisfied. To do otherwise would involve the duplication of resources, as our client commissions STH to provide care for patients who need to be in hospital, and the commissioning process is structured in such a way as to recognise that patients with the same or similar conditions have varying levels of need. The Panel has considered the information available and concluded that there is no reason why STH cannot meet your client’s assessed needs and provide her with safe and suitable care.[9]Concerns have been raised about the care that your client has received whilst at STH. These are however quality of care issues. On capacity, STH have not requested any additional support to meet your client’s needs, despite her recent relatively long admission to STH.In August 2012 nursing staff from STH were recorded as confirming that they were able to meet your client’s needs on the ward. If STH considered that exceptional circumstances applied they could have approached the PCT or our client to request additional resources at any time during or after your client’s recent admissions to hospital. No such request has been made. Exceptionality criteria[10]As has been accepted, our client will provide CHC funded care where such provision will cost more than the most cost effective care provision in exceptional circumstances. That would be the case if CHC funded care were provided in hospital, as the most cost effective care provision would be that provided by the hospital alone. Such funding will only be provided in exceptional circumstances are set out in the policy. Pursuant to paragraph 15 of the policy, the question of whether exceptional circumstances are present is a determined on a case-by-case basis involving the application of a two stage process. Our client must consider:(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.[11]In relation to (a) our client does not consider that your client has needs that are significantly different to other individuals with the same or similar conditions. Having considered your client’s assessed needs, the Panel found that STH should be able to provide your client with safe and suitable care that is sufficiently tailored to meet those needs. PEG feeding and the monitoring of oxygen saturation levels are routinely provided by STH as part of the management of patients with similar needs to your client. Similarly, STH are experienced at dealing with patients exhibiting challenging behaviours.[12]In addition, the Panel found no reason to suggest that your client would benefit significantly more from the additional care than others with the same or similar conditions. Provision (b) is therefore also not met.[13]On the information available, the Panel has therefore decided that there are no exceptional circumstances which would justify the provision of additional care to your client whilst she is in hospital.[14]The Panel will reconsider this position if a change in your client’s needs is identified.[15]Our client is advised of any major changes in your client’s condition. It has received no information to suggest that her condition has deteriorated since the DST was completed and therefore that her needs have intensified. In fact, the evidence available to our client suggests that your client’s needs may in fact have diminished due to a perceived reduction in her challenging behaviours and improvements to her chest. Those matters can however be properly evaluated as part of the review process.

Conclusion

[16]The provision of 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. There are no exceptional circumstances, as defined in the relevant policy, that justify the provision of the additional care.[17]For the reasons stated above, additional care will not routinely be provided to your client while she is in the care of STH. Our client will however keep the situation under review and will consider its position if a change in your client's care needs is identified.[18]Our client has recognised the need for a review of your client’s needs and asks that you and your client’s litigation friend and family co-operate with any arrangements required in connection with that review. Sheffield CCG Resource Panel: Factors to be considered 79. … 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. CONSENT ORDER BEFORE The Honourable Mr

ANNEXE A

Justice Stuart-Smith on the 2nd day of May 2014 IT IS HEREBY ORDERED THAT:

[1]The application for judicial review shall be dismissed;[2]The parties have 14 days to make written submissions with regards to costs;

Basis of the decision

[3]Any submissions in reply shall be made 7 days thereafter;[4]All written submissions shall be put before the trial judge for determination on the papers.

Cited in 2 later judgments