Briefing by Luke Clements ~ updated August 2017. For corrections or suggested additions please contact firstname.lastname@example.org
Section 47 of the 2014 Act is concerned with the contested question of ‘Continuing NHS Healthcare’ – for which Wales has particular problems (and for which in 2014 it issued revised guidance). In relation to this question both the English and Welsh Bills commenced with the same phrasing. However a number of amendments were made to the English Bill to ensure that the current boundary between local authority responsibilities and the NHS (as defined in the Coughlan Court of Appeal judgment) remained unchanged. Sadly no such amendments were made in Wales. The result is a potentially serious problem, since the wording in the Act is materially different to the wording used by the court in Coughlan.
The Coughlan judgment confirmed that local authorities were prohibited from funding nursing care that the NHS was required to provide but that they could fund nursing care if it was (1) merely ancillary or incidental to the provision of social care support and (2) of a ‘nature’ that one would expect a social services authority to provide. Although section 47 makes it unlawful for local authorities to fund nursing care unless it is ‘incidental or ancillary’ to social care, it contains no prohibition in relation to the second element – namely as to the ‘nature’ of the nursing care’.
In the absence of firm action by the Welsh Government, LHBs will inevitably seek to argue that the Act materially undermines the rights of patients to ‘Continuing NHS Healthcare’ funding. Unless this is the (unstated) intention of the Welsh Government, this failing will need to be addressed directly in the regulations and in the Code. A clear statement would also be welcome – on the lines of the statement made by the English Minister that:
The provisions [in the English Act] are not intended to change the current boundary—let me place that clearly on the record—and we do not believe that they will have that result. The limits on the responsibility by reference, as now, to what should be provided by the NHS remain the same’.
It is however strongly arguably that the silence of the Welsh Government on this question (and the lack of any formal adjustment in the funding allocations for health and social care in Wales) is best interpreted as evidencing an intention that the health / social care boundary remain unchanged by enactment of the 2014 legislation.
NHS and Direct Payments
Although the Courts have previously held that the NHS Act 2006 did not permit direct payments to be made in relation to NHS responsibilities and in R (Harrison) v Secretary of State for Health and others (2009), in Gunter v SW Staffordshire PCT (2005) Collins J held that there was nothing in principle in the NHS Acts to preclude a health body making direct payments to an Independent User Trust (IUT) which would then arrange for the patient’s health care needs. The Social Services and Well-being (Wales) Act 2014 s50(4)(c) permits direct payments to be made to a ‘responsible person’ – ie someone other than the adult in need. This option was not available when Harrison was considered and it is arguable that the judgment needs reviewing in Wales to take account of this development and the subsequent SW Staffordshire decision. It is also arguable that Harrison was wrongly decided. An appeal against it was withdrawn when the case became academic due to the implementation of the right to direct payments for NHS patients in England eligible for continuing care funding.