National Health Service provision

Nonetheless, for patients, the situation remains one of considerable uncertainty. Service provision can vary greatly from place to place, which means that what services people get can depend on where they live. Even within the same area, provision could lawfully be uneven from week to week and from month to month, depending on the resources and facilities available. Thus, not only will there many be escape routes (see 3.1) for the NHS in terms of restricting expenditure, but many of them will be lawful, since concrete obligations are so hard to find.

REGISTERED NURSING CARE

People in nursing homes are eligible to have a certain element of their stay, namely the registered nursing care element, paid for by the NHS. This is paid at a flat rate of £101 per week. This is to be distinguished from the situation where people in nursing homes have NHS continuing health care status and have the whole cost of their stay – the accommodation, board, personal care and nursing care – funded by the NHS at no cost to the residents.

NHS SERVICES PROVIDED IN CARE HOMES AND IN PEOPLE’S OWN HOMES

In principle, the NHS is responsible for providing a range of community health care services, to people in care homes and to people in their own homes.

In practice, however, provision tends to be highly variable; this flows largely from a lack of both resources and lack of legal entitlement to such services. This situation takes on a more serious aspect, in the wake of central government policy of care closer to, and in, people’s own homes, together with the closure of many hospital beds. In principle, NHS resources should have been diverted significantly into the community in order to implement this policy; in practice this appears not to have happened to the degree necessary. In other words, many acute and community hospital beds have closed, without adequate community services being in place. This was one of the reasons identified for the disastrous lapses of care identified in 2007 by the Healthcare Commission at acute hospitals in Kent, associated with excessive bed occupancy and a shortage of both beds and staff.

HOSPITAL DISCHARGE

NATIONAL SERVICE FRAMEWORKS

The Department of Health has published a number of national service frameworks that amount to guidance (rather than legislation) and apply to both the NHS and local authorities. Three of particular relevance to community care concern older people, mental health and long-term conditions.

17.1 NHS BASIC DUTIES AND RESOURCES

The main duties in the NHS Act 2006 that ultimately underlie the provision of service for individual people are as follows:

•The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement (a) in the physical and mental health of the people of England; (b) in the prevention of, diagnosis and treatment of illness. For that purpose, the Secretary of State must provide or secure the effective provision of services (s.1).

•The Secretary of State has the power (a) to provide such services as he or she considers appropriate for the discharge of any duty in the NHS Act 2006; (b) to do any other thing to facilitate, or which is conducive or incidental to, the discharge of such a duty (s.2).

•The Secretary of State must, to such extent as he or she ‘considers necessary to meet all reasonable requirements’, to provide:

hospital accommodation or other accommodation for the purpose of any service provided under the Act

medical, dental, ophthalmic, nursing and ambulance services

other services for the care of pregnant women, women who are breastfeeding and young children as he or she considers appropriate as part of the health service

other services or facilities for the prevention of illness, the care of people suffering from illness and the aftercare of people who have suffered from illness – such as he or she considers are appropriate as part of the health service

such other services or facilities as are required for the diagnosis and treatment of illness (s.3).

The above functions are exercisable, on behalf of the Secretary of State, by strategic health authorities and NHS primary care trusts (NHS Act 2006, s.7; SI 2002/2375).

Accordingly, the NHS has a very wide discretion to make priorities and allocate resources locally. Such is this discretion that the general duty to provide services under s.3 of the NHS Act 2006 is sometimes seen, in respect of any particular service, to be in effect a power only. It is flimsy. Thus, legal challenges to the provision, or more accurately non-provision, of NHS services have been relatively few. This contrasts with the comparatively large volume of negligence cases brought against the NHS by service users who claim to have suffered harm as a result of carelessness in the provision of NHS services. This illustrates the point that it is legally ‘safer’ for the NHS to refuse to accept patients and to provide services at all, rather than to provide services but to a negligent standard (Brazier 1992, p.23).

17.2 GENERAL PRACTITIONERS

Community care policy guidance states that, as a matter of good practice, general practitioners (GPs) will wish to make a full contribution to community care assessments. It also reminds local authorities that GPs are not always best placed to assess on behalf of a local authority, since GPs have a personal duty and relationship with their patients; in which case, local authorities might wish other practitioners to act in that capacity (DH 1990, paras 3.47-48).

Under their contractual terms, GPs have to provide a consultation at the request of a person at least 75 years old who has not had such a consultation in the previous 12 months. The inquiries and examinations to be undertaken are such as appears to the GP to be appropriate in all the circumstances (SI 2004/291, schedule 6). A GP may demand or accept a fee from any statutory body for services rendered for the purpose of that body’s statutory functions (schedule 5). In addition, GPs must refer patients for other services provided under the NHS Act 2006 (r.15); this would include not just health services but also community care services provided by local authorities under s.254 and schedule 20.

17.3 NHS LEGAL CASES AND SCARCE RESOURCES

One of the legal consequences of the general duties contained in ss.1 and 3 of the NHS Act 2006 is that the NHS has been highly successful in legally defending the non-provision of services – at least when it has argued a lack of resources as the reason.

Lack of resources for orthopaedic treatment: an illusion to think the courts could interfere. Some people in Staffordshire who had been on a waiting list for NHS orthopaedic treatment for some years sought a declaration that the Secretary of State was not providing a comprehensive health service. The applicants had waited for periods longer than ‘medically advisable’; the delay occurred because of a shortage of treatment facilities that was due partly to a decision not to build a new block on the grounds of cost. They claimed that the Secretary of State, regional health authority and area health authority had all breached their statutory duties under both s.1 and s.3 of the NHS Act 1977 (since superseded by the 2006 Act).

One of the judges (Lord Denning) stated that s.3 of the NHS Act 1977 did not impose an absolute duty, since it was inevitably governed by resources. Indeed, the only way it could be read was to supply extra words which did not actually appear in the Act at all. These were as follows (italics added): ‘duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements such as can be provided within the resources available’. He went on to point out that it ‘cannot be supposed that the Secretary of State has to provide all the latest equipment [or] to provide everything that is asked for. That includes the numerous pills that people take nowadays: it cannot be said that he has to provide all these free for everybody.’

Another of the judges, sounding a cautionary note, added that he felt ‘extremely sorry for the particular applicants in this case who have to wait a long time, not being emergency cases, for necessary surgery. They share that misfortune with thousands up and down the country. I only hope that they have not been encouraged to think that these proceedings offered any real prospects that this court could enhance the standards of the National Health Service, because any such encouragement would be based upon manifest illusion’ (R v Secretary of State for Social Services, ex p Hincks).

Another high profile case was decided in similar fashion:

Refusing potentially lifesaving treatment for a child. A health authority refused to provide possibly lifesaving treatment for a ten-year-old child suffering from leukaemia. One of the grounds for the refusal was that the proposed treatment would not be an effective use of resources. The Court of Appeal, on the same day, overturned the High Court’s decision that the health authority should think again.

On the question of resources, it stated that it was not for the law courts to take decisions about the optimum – that is, utilitarian – allocation of resources. It was ‘common knowledge that health authorities cannot make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive equipment they would like. Difficult and agonising judgements have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgement which the court can make.’

In addition, the court dismissed the argument that if the health authority had money in the bank which had not been spent, ‘then they would be acting in plain breach of their statutory duty if they did not procure this treatment’. Indeed, ‘it would be totally unrealistic to require the Authority to come to the court with its accounts and seek to demonstrate that if this treatment were provided for B then there would be a patient, C, who would have to go without treatment. No major Authority could run its financial affairs in a way which would permit such a demonstration’ (R v Cambridgeshire HA, ex p B).

Bed required on secure unit: NHS under no obligation even to use best endeavours. A man had been given ‘leave’ under s.17 of the Mental Health Act 1983 by his responsible medical officer (RMO), subject to conditions – namely a bed on a medium secure unit. The courts ruled that, since the funding fell to be provided by an NHS trust under s.3 of the NHS Act 1977 (now 2006), it still remained a question of the establishing priorities. The Secretary of State and the NHS trust had no obligation even to use their best endeavours to give effect to the decision of the RMO (R(K) v West London Mental Health Trust).

The courts may require in principle that reasons be given for decisions about the allocation of resources and services, but are unlikely to make that requirement onerous, certainly not in the case of the Secretary of State for Health:

Giving reasons for size of village community for people with learning disabilities. A dispute arose about the size of a village community that was to be created on the site of a long-stay hospital for people with severe learning disabilities, with additional physical disabilities. The Secretary of State ruled on the smaller size. She was challenged on the adequacy of her reasons. These seemed to boil down to the statement that she had concluded that the smaller size would take account of the needs of the residents and reflected government policy. The court found that this was sufficient (R (Heimsath) v Secretary of State for the Home Department).

The health service ombudsman, like the courts, will generally not tackle the matter of resources directly, but might nevertheless in some circumstances find fault in relation to resource-related matters. For instance, he has criticised a two-year wait for an assessment at a hearing clinic; and also the fact that the trust had not developed a coherent strategy for trying to remedy such long waits for this service (Southampton University Hospitals NHS Trust 2003).

The very general scope of s.3 of the 2006 Act not only allows extensive non-provision of services, but conversely allows extensive provision in both breadth and depth. For instance, in one case it was queried whether s.3, and in particular the word ‘facilities’ in it could cover provision of an advice and assistance service about state benefits for people with mental health problems. The question was whether the word could cover not just accommodation, plant and other means but also human beings. The court held that it could (R(Keating) v Cardiff Local Health Board).

17.3.1 TREATMENT IN EUROPE AND REIMBURSEMENT

The European Court stated that if a person waited for treatment on a waiting list unac- ceptably long (having regard to an objective medical assessment), then the NHS could not refuse authorisation of the treatment in another European Community country and reimbursement of the cost (R(Watts) v Bedford Primary Care Trust).

Of course this left open the all important question as to the circumstances in which an ‘objective’ medical assessment would conclude that the waiting time ‘appeared to exceed an acceptable time’. In a subsequent case, the courts confirmed that it was the patient, and not the medical service provider, that would have to make the claim against the NHS. In addition, any liability would depend on whether the NHS commissioned the treatment, whether it would have commissioned it, whether there was undue delay, whether the treatment took place in the United Kingdom or elsewhere (European Surgeries v Cambridgeshire PCT).

The Department of Health has issued guidance to NHS commissioners, underlining that they should have systems for considering authorisation for patients to receive treatment abroad; that they can refuse to pay for health care abroad that they do not offer in their locality; that a patient is legally entitled to go elsewhere for treatment that the NHS should offer but for which there is undue delay; and that they are only obliged to fund up to the cost of the treatment in the United Kingdom (the patient having to pay the extra) (DH 2007g).

17.4 NHS LEGAL CHALLENGES ON GROUNDS OTHER THAN RESOURCES

The NHS has sometimes been legally challenged successfully, when the ground is not simply lack of resources.

For instance, central government guidance must be properly taken account of. A failure to do so in relation to drug treatment for multiple sclerosis meant that the health authority had acted unlawfully (R v North Derbyshire Health Authority, ex p Fisher).

In another court case, a health authority misinterpreted its responsibilities to provide continuing health care services under the NHS Act 1977 (now superseded by the NHS Act 2006). It expected the local authority to act unlawfully by providing a level of nursing service that was beyond the legal power of a local authority to provide (R v North and East Devon HA, ex p Coughlan). In the same case, the health authority acted unlawfully in respect of a breach of promise and the dashing of people’s legitimate expectations:

Legitimate expectation. The breaking of an explicit promise to a disabled person constituted, without an overriding reason, a breach of legitimate expectations. The claimant, together with other patients, had received an explicit promise that when she moved into a specialist residential unit for disabled people, she could remain there for life. A few years later, the health authority tried to close the unit. The proposed closure was held to be unlawful (R v North and East Devon HA, ex p Coughlan).

Discrimination has sometimes been argued as a ground of challenge. For instance, the following case referred to human rights:

Likewise, discrimination was the crux in a case about treatment for Alzheimer’s disease:

Discrimination in drug treatment. The National Institute for Health and Clinical Evidence (NICE) issued guidance on the use of acetylcholinesterase inhibitors for treatment of people with Alzheimer’s disease. The only successful ground of challenge related to discrimination. This was that the guidance had not sufficiently addressed the question of atypical groups. No proper consideration had been given to NICE’s duties as a public authority to promote equal opportunities and to have due regard to the need to eliminate discrimination under s.49 of the Disability Discrimination Act 1995 (Eisai Ltd v National Institute for Health and Clinical Excellence).

The NHS is also regularly challenged, sometimes successfully, over defects in local consultations, when it is proposing to change or cut back services (see below).

17.4.1 BLANKET NHS POLICIES

One ground of challenge that has borne some fruit concerns the imposition of blanket, or rigid policies by the NHS. One of the common law principles applied by the law courts in judicial review cases is that public bodies should not ‘fetter their discretion’, that is, not blindly apply policies that are incapable of flexibility in at least exceptional cases:

Fettering discretion: blanket NHS policy about gender reassignment surgery. When a health authority applied a policy so rigidly such that it fettered its discretion, the Court of Appeal found that it had acted unlawfully. The health authority stated in one breath that exceptions could be made, but in another that the treatment in question, gender reassignment surgery, could never be clinically justified. Thus a policy would not be lawful unless it ‘genuinely recognises the possibility of there being an overriding clinical need and requires each request for treatment to be considered on its individual merits’. This meant that there was therefore no genuine possibility of an exception; it was over-rigid application of a blanket policy (R v North West Lancashire Health Authority, ex p G, A and D).

The courts have started to explore such blanket policies with more frequency. Thus, if a policy sets out the types of exception to be made and for which funding should be made available, non-adherence to the exceptions policy might be unlawful:

Not following the policy on exceptions to the prohibition on treatment for cancer with particular drug. For instance, when a woman was denied treatment for cancer the decision was ruled unlawful on the following grounds: (a) the doctor concerned had raised an irrelevant question about use of the drug for this patient; (b) there were no other treatments available for the woman; (c) the funding Panel had not taken account of the slim but important chance that the treatment could significantly prolong the woman’s life; (d) on any fair minded view of the ‘exceptionality criteria’ in the primary care trust’s policy, her case was exceptional (R(Otley) v Barking and Dagenham NHS Primary Care Trust).

Irrational policy on drug treatment for cancer. An NHS primary care trust had a policy of not funding cancer with a particular non-licensed drug (Herceptin) unless there were exceptional clinical or personal circumstances. The policy was not based on the fact that the drug was unlicensed, nor was it based on resource constraints within the trust. The court found the policy to be irrational. This was essentially for two reasons.

First, there was no rational basis for making clinical distinctions within the potentially eligible group of patients, and – once it was clear that the PCT had decided that cost was irrelevant – the ‘only reasonable approach was to focus on the patient’s clinical needs and fund patients within the eligible group who were properly prescribed Herceptin by their physician.’

Second, had resource constraints been relevant, taking account of personal circumstances might have been rational – for instance, funding treatment for a woman with a disabled child, but not for a woman in different circumstances. However, remove the resources issue – as the PCT claimed to have done – and where clinical needs are equal, the court found that ‘discrimination between patients in the same eligible group cannot be justified on the basis of personal characteristics not based on healthcare’.

The court would not order the treatment. Instead it was now for the PCT to reconsider and reformulate a lawful policy (R(Rogers) v Swindon Primary Care Trust).

The health service ombudsman also will consider if blanket polices have been imposed and whether there was a genuine mechanism to consider exceptions, as in the following cases concerning powered wheelchairs, breast reduction, homoeopathic treatment and growth hormone treatment.

Excessively rigid policies. The health service ombudsman has found maladministration when the NHS had no genuine mechanism for considering whether to make exceptions in terms of provision of electrically powered indoor and outdoor wheelchairs (Epsom and St Helier NHS Trust 2001).

Likewise when a health authority applied an over-restrictive – indeed arguably ‘perverse and wholly unreasonable’ – policy on breast reduction surgery. The woman had a spinal disorder and back pain, but had been refused surgery as a matter of policy, because the policy only allowed such surgery for psychiatric morbidity. This refusal was despite support for the surgery from her GP, consultant and surgeon (North Essex HA 2001).

A policy not to fund homoeopathic treatment was not objectionable; but the policy was adopted without sufficient thought as to whether there might be circumstances that could justify departure from it. The patient in question had a chronic skin disease that had previously responded to homoeopathic treatment, when other treatments had failed. Although the health authority’s extra-contractual referral panel did review the case, it was not clear what considerations it took into account,and no clear indication as to what sort of circumstances might have led to an exception being made (East Sussex, Brighton and Hove Health Authority 1999). The health service ombudsman made similar objections in the case of non-provision of growth hormone treatment for a woman whose consultant had recommended it. The request was refused because there were no exceptional circumstances; but the health authority could shed no light on what might constitute exceptional circumstances (North Essex HA 2003).

17.5 CONSULTATION BY NHS BODIES ABOUT CHANGES AND CUTS TO SERVICES

In addition to the cases covered below, a number of others in both health and social care, have revolved around the duties to consult with, and to assess the needs of, residents of care homes or patients of hospitals before the closure of such homes or hospital beds (see 5.2.1.6).

17.5.1 HEALTH OVERVIEW AND SCRUTINY COMMITTEES

Local health overview and scrutiny committees have an important role in scrutinising and reviewing local health service provision. The committees are made up of local councillors, elected representatives. This is particularly important, given that the NHS trust and primary care trust boards are composed of members who are not elected and whose accountability is not to the local population but to the remote Secretary of State for Health.

These committees have the power to make referrals to the Secretary of State, who in turn has the power to appoint an Independent Reconfiguration Panel to investigate and review local NHS proposals. Up to July 2007, this power was little exercised by the Secretary of State, and the process had fallen into disrepute. A new Secretary of State began from that time to increase the involvement of the Panel.

17.5.1.1 Health overview and scrutiny committees: role

A local authority overview and scrutiny committee has the power to review and scrutinise any matter relating to the planning, provision and operation of health services within its area. It may make reports and recommendations to local NHS bodies.

In addition, when a local NHS body is considering any proposal – for a ‘substantial development of the health service’ in the area of a local authority, or for a ‘substantial variation in the provision of such a service’ – it must consult the overview and scrutiny committee. This duty does not apply if the NHS body is satisfied that a decision must be taken without consultation because of a risk to the safety or welfare of patients or staff. However, even then, the NHS body must notify the overview and scrutiny committee about the decision and why consultation has not taken place. If the committee is not satisfied that the consultation has been adequate or adequate reasons given for not consulting, then it may report this to the Secretary of State. The latter may, in turn, require the local NHS body to carry out such consultation or further consultation.

Guidance states that the following should be taken into account in considering whether the proposal is about ‘substantial development’: changes in accessibility of services (e.g. changes on a particular site or opening times for a particular clinic), the impact of proposals on the wider community (including economic, transport, regeneration), patients affected, methods of service delivery (eg. from hospital to community-based settings) (Department of Health 2003m, para 10.6.3).

Following referral by scrutiny committees to the Secretary of State, the latter will consider whether to refer the matter for review by the Independent Reconfiguration Panel (IRP), which is an advisory, non-departmental body. The IRP will take up cases only when all other options for local resolution have been explored.

17.6 PUBLIC AND PATIENT INVOLVEMENT

A further safeguard in the NHS decision-making process, beyond overview and scrutiny committees, is public involvement more generally. This includes a duty on NHS bodies to consult with the public.

Following the abolition of community health councils in 2003, public and patient and involvement forums (PPIFs) were created.

In addition, NHS bodies have a duty in respect of the planning of the provision of services, developing and considering proposals for the changes in the way services are provided, and decisions to be made by the NHS body affecting the operation of those services. The duty is to make arrangements to secure that people, to whom those services are being or may be provided, are involved (whether through being consulted or provided with information or in other ways) in such changes – either directly or through representatives (NHS Act 2006, s.242).

This duty was arguably watered down from its previous from, by legislative amendment through s.233 of the Local Government and Public Involvement in Health Act 2007. Previously, it stated that people had to be involved in and consulted on changes. Now the Act makes quite explicit that the duty could be discharged simply by the provision of information. In addition, the duty now only applies if the proposal under consideration would have an impact on the manner in which services are delivered to users of health services or on the range of health services available. Third, the reference to the delivery of services is to ‘delivery at the point when they are received by users’. These provisos about the delivery of services appears to be in response to the case of Smith v North Eastern Derbyshire PCT, in which the courts held that the duty of consultation applied when it was proposed to run general practitioner services through a private company.

For instance, in 1999, it was important that ‘public and patient partnership is genuine, not token, so that people at a local and national level, are fully involved in decisions both on their own care and the way in which services are provided’ (DH 1999c, p.1).

In 2003, the government passed s.11 of the Health and Social Care Act (now superseded) to ‘strengthen accountability to patients and the public and make that there is transparency and openness in decision-making procedures’. Discussion had to start ‘before minds have been made up’, and patients and the public had a ‘central role as partners with the NHS’ (DH 2003m, pp.2,7). One consequence would be that ‘trust is built between communities and the health service’ (DH 2003n, p.x).

Despite all this, the House of Commons Health Committee in 2007 identified that the policy was by no means being translated into practice. It referred to a weakening of s.11 by the Local Government and Public Involvement in Health Act 2007. It noted also that people ‘feel that they are consulted after decisions have been made… Consultations in which a large proportion of the public reject plans which go ahead anyway must not continue to happen.’ It noted that NHS bodies often sought to avoid consultation under s.11, and were supported in this by the Department of Health (HCHC 2007, p.5).

17.7 LEGAL CASES ON CONSULTATION

In the light of extensive cutbacks to health services from 2005 onwards, the duty to involve and consult with the public under s.242 of the NHS Act 2006 (formerly s.11 of the Health and Social Care Act 2001) has been subjected to judicial scrutiny. The duty has been held to be wide in scope, although the courts have also indicated a reluctance to hear too many such cases:

Independent Sector Treatment Centre: consultation. A primary care trust was seeking to set up an Independent Sector Treatment Centre contract to deliver certain local health services. It argued that a s.11 duty had not arisen because the arrangements were being made by the Department of Health at central government level, to whom the s.11 duty did not apply.

Mere involvement or consultation? First, use ‘of different terms, involvement and consultation, only makes sense if something less than consultation may be appropriate in certain circumstances. The two concepts of involvement and consultation reflect the different stages at which the obligation may be triggered. Whether mere involvement or something more, namely [full] consultation…is required, will depend upon the circumstances.’. Thus, in some circumstances, no more than the giving of information will be required. This can be easily achieved by providing that to an Overview and Scrutiny Committee or a Public and Patient Involvement Forum (PPIF).

Full consultation: key principles. Second, full consultation should proceed upon well-established principles. The consultation must be undertaken at a time when the proposals are still at a formative stage. Sufficient reasons must be provided for particular proposals so as to permit those consulted to give intelligent consideration and response. Adequate time must be given. The product of consultation must be conscientiously taken into account.