Briefing by Luke Clements ~ updated February 2020. For corrections or suggested additions please contact email@example.com
Section 47 of the 2014 Act is concerned with the contested question of ‘Continuing NHS Healthcare’ – for which Wales has particular problems. In an attempt to address some of these problems, in 2014 revised guidance was issued Continuing NHS Healthcare: The National Framework for Implementation in Wales). At the time of this update (February 2020) the outcome of consultation on updating the Framework was awaited – to view the consultation document click here .
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
In R (Harrison) v Secretary of State for Health and others (2009), the High Court held (in an English case) that the NHS Act 2006 did not permit direct payments to be made by NHS bodies. Although in England the Act has since been amended to allow direct payments, this is not the case in Wales.
It is 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 (patients eligible for continuing care funding).The argument that Harrison was wrongly decided concerns the fact that the 2006 Act does not expressly prohibit direct payments – the judge simply decided that it should be interpreted as not permitting such payments.If the courts were confronted with a strong human rights case (where for example someone is being threatened with forced institutionalisation) then the Act would have to be interpreted ‘so far as is possible’ to give a human rights compliant meaning. Such a case would rely on the public law obligation to comply with Article 8 of the European Convention on Human Rights (respect for private and family life) and the commitment of the Welsh Government to adhere by the principles in the UN Convention on the Rights of Persons with Disabilities (and Article 19 in particular).
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 make arrangements for the health care needs of the profoundly disabled 21 year old applicant, stating:
- It seems to me that Parliament has deliberately given very wide powers to [health bodies] to enable them to do what in any given circumstances seem to them to achieve the necessary provision of services. I have no doubt that this could involve the use of a voluntary organisation such as an IUT as the supplier. There seems to me to be no difference in principle between an IUT set up specially for a small number of persons or an individual and a nursing or other agency so far as the defendants are concerned. It would obviously be necessary for a member of the defendants to be a trustee so as to ensure that money was properly and prudently spent.
For people eligible for Continuing NHS Healthcare the 2014 Welsh Government Guidance Continuing NHS Healthcare: The National Framework for Implementation in Wales advises (paras 4.46 – 4.50):
- … if an individual has existing DP arrangements, these should continue wherever and for as long as possible within a tailored joint package of care.
- It is currently unlawful for Direct Payments to be used to purchase health care which the NHS is responsible ..
- Where an individual whose care was arranged via DPs becomes eligible for CHC funding, the LHB must work with them in a spirit of co-production.
- Although DPs will no longer be applicable … this should not mean that the individual loses their voice, choice and control over their daily lives. Every effort should be made to maintain continuity of the personnel delivering the care, where the individual wishes this to be the case.
- An individual in receipt of DP retains the right to refuse to consent to CHC assessment and /or care package …
- In such cases, partner agencies must work together with the individual and their family/carers to ensure that the risks are fully understood and mitigated as far as possible.
Where a person is jointly funded by a LHB and local authority, then there would appear to be nothing in principle for the local authority not to make the direct payments and in so doing, to use funds transferred to it by the LHB (as its contribution) in pursuance of its powers under NHS (Wales) Act section 194.
Where a LHB is unreasonably refusing to be flexible in relation to such payments (ie concerning the use of a Independent User Trust or to use its powers under section 194 of the 2006 Act, it is incumbent on the Welsh Government to intervene to resolve this deadlock. In such a case the Government could – for example – direct a recalcitrant LHB or an NHS Trust by using its powers under sections 12 and 19 of the 2006 Act.