NHS Continuing Healthcare & young people: R (JP) v NHS Croydon (2020)
Preliminary note
This briefing concerns a recent English judgment. The NHS (Wales) Act 2006 and the NHS Act 2006 (which focuses primarily on England) both create almost identical duties to promote comprehensive health services in the two nations. In relation to Wales, however, the NHS Continuing Healthcare duties owed to children and young people are more clearly expressed than in England – and this is explained in a Rhydian Wales Social Welfare Law on-line paper (2018) 12-18 which can be accessed by clicking here.
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The disregard of the law concerning NHS Continuing Healthcare responsibilities by Health Bodies in England and Wales is hardly news. However, where one is confronted by a disabled child with (among other things) a tracheostomy and who additionally requires a ventilator at night because he has periods when he stops breathing – one might have thought he would be eligible for NHS Continuing Care funding.
I suppose there are two principal reasons why this should be. Firstly, the broad point – that if someone in this position is not the responsibility of the NHS – then what is the point of the NHS and why are we so proud of it? Secondly, in R (T, D and B) v Haringey LBC [2005] EWHC 2235 (Admin) Mr Justice Ouseley held that a child in a similar position was eligible for NHS Continuing Care funding. In relation to the argument that the tracheostomy care could be funded by social services – under the Children Act 1989[1] he said (para 68):
… Such an interpretation would turn the social services authority into a substitute or additional NHS for children. That would be to provide an impermissibly wide interpretation, creating obligations on a social services authority which are far too broad in the context of other statutory bodies and provisions covering the needs of children.
Decisions of this kind do not wash with many health bodies in England and Wales, as evidenced by the judgment in R (JP) v NHS Croydon Clinical Commissioning Group & the London Borough of Croydon [2020] EWHC 1470: the case concerning the young child with a tracheostomy and who requires a ventilator at night.
Mr Justice Mostyn was not impressed – in fact he was more than a little perturbed by the health body’s ‘dogged’ refusal (to reinstate care during the proceedings), their ‘abstruse’ argument that the family were unable to appeal the decision, and their ‘singularly unfortunate’ and ‘hopelessly flawed’ decision-making process. Part of their rationale for refusal was that because he stopped breathing at night it was not therefore ‘unpredictable’!
Since the earlier judgment of Mr Justice Ouseley in the Haringey proceedings had ruled out providing tracheostomy care under the Children Act 1989 the CCG sought to argue that the local authority could however fund this under the Localism Act 2011. Something Mr Justice Mostyn considered to be ‘inconceivable’ and, if correct, would drive ‘a coach and horses through very carefully delineated frontiers of competence and function between the NHS on the one hand and local authorities on the other’.
Will this judgment change anything? Absolutely not. Why not? Because there are no penalties for bad behaviour of this kind. Neither the Welsh Government or NHS in Wales, nor the Department of Health and Social Care or NHS England have the slightest interest in this issue and judicial reviews of this kind come around once every decade at most – whereas decisions to refuse disabled children NHS Continuing Care funding happen daily up and down the country.
For a further analysis of this issue see ‘NHS Continuing Care (CHC) responsibilities for Children and Young People in Wales’.
[1] Which at that time applied in Wales – the relevant provisions of which have now been replaced by the Social Services and Well-being (Wales) Act 2014.
Photograph of ‘Hwylio heibio Dolbadarn’ by Richard Jones -@lluniaurich
Posted 14 July 2020