Courting disaster: the litigation challenge for CCGs
It is said that no news is good news. So interest in the Winterbourne case or the Heslop report is encouraging only because it identifies bad practice. Likewise, if litigation is a measure of the success of a particular state of affairs, the courts’ involvement in care packages for vulnerable patients is a sign that not all is well.
For CCGs, the prospect of taking on the mantle of litigation arising from care arrangement disputes may present a significant challenge. Some of the key issues to consider are as follows:
Firstly, the Winterbourne case has shone a spotlight on the question of whether a commissioner can bear responsibility for injury suffered in such a placement or whether its role is merely to ensure that a care-co-ordinator has found a placement that meets accepted criteria. A CCG will need robust arrangements with care co-ordinators. Service Level Agreements, where they exist as between the CCG and care-co-ordinator or the receiving placement organisation will vary in terms and requirements.
It remains to be seen whether a formal legal duty of care will be found or imposed on commissioners whose funded patients end up being subjected to abuse or simply poor care. In the event of, for example, the insolvency of the residential care provider, a neglected patient may choose to seek a remedy from the NHS, either through the care co-ordinator or the CCG.
Secondly, the Public Sector Equality Duty is now well known and has become a popular head of challenge in judicial reviews of funding decisions. Added to the general Public Sector Equality Duty are the new duties on CCGs in relation to reducing inequality, promoting integration and enabling patient choice. As a result, equality considerations will need to be reflected in the design of policies and in the decision making by CCGs. As a result a CCG must always give due regard to the need to eliminate discrimination and advance equality of opportunity where it is taking a decision which relates to or affects an individual with a relevant protected characteristic. Whilst case law suggests that there is no requirement to make specific reference to the duty and having due regard is a matter of substance, not form. The ability to defend a decision is made significantly easier if a CCG has a record demonstrating that it has appropriately fulfilled its duty.
Thirdly, CCGs may find themselves dragged into litigation in the Court of Protection where disputes arise as to the suitability of a placement in, say, a residential placement. Any serious dispute as to whether a package of care is in the best interests of a person should be resolved by the Court of Protection in the last resort. In practice, a common underlying motive for such litigation is to prepare the ground for a challenge to funding. In effect, litigation through the Court of Protection opens up another avenue to secure care packages.
It has long been established that financial constraints can be part of the legitimate decision-making process that PCTs use to limit funding of extraordinary care packages. Challenges to refusals to fund such placements have traditionally been mounted by way of judicial review. The difficulty for individuals bringing claims in judicial review is that public funding may not be readily available and the legal hurdles are hard to clear: it has to be shown that the decision made to refuse funding is outside policy and is unreasonable or irrational. In the Court of Protection any decision made has to be in the best interests of the person concerned. It is mandatory to consider the views of those with a personal interest in the patient’s welfare and the financial cost of such a package is not one of the considerations to bear in mind.
However, the Court of Protection does have to consider all the circumstances of any case and will not entertain a care package which is simply not available. For that reason it is important for CCGs to be prepared at the outset of any potential dispute with a clear rationale for what is and is not available and fundable. Having clear policies is crucial as it enables the CCG to take a stand early on in Court of Protection proceedings and keep control over what can be offered and what cannot. This reduces the chance of court of protection proceedings being used to dictate what is in a patient’s best interests, which then becomes the basis for the care package, regardless of the cost.
We have extensive experience in these areas, both for preventive and reactive purposes. We can provide support in drafting appropriate service level agreements, policies for treatment funding or case reviews to identify areas of risk where our expertise can help CCGs respond effectively.