Best interests and mental capacity
Nicholas Endean | 04.05.2018
26.10.2017 Nicholas Endean
Today we learn from the Equality and Human Rights Commission (“EHRC”) that a new policy implemented by 44 Clinical Commissioning Groups (“CCGs”) which caps funding for NHS Continuing Healthcare funded care outside Hospital (“cap policy”), means disabled people may be prevented from living at home, with their families, in the Community, despite being well enough to do so.
The National Framework for NHS Continuing Healthcare November 2012 (“Framework”) makes it clear at Paragraph 56 that:
“NHS Continuing Healthcare may be provided in any setting (including, but not limited to, a care home, hospice, or the person’s own home. Eligibility for NHS Continuing Healthcare is, therefore, not determined or influenced either by the setting where the care is provided or by the characters of the person who delivers the care”.
In addition, Paragraph 167 states:
“The package to be provided is that which the CCG assesses is appropriate for the individual’s needs”.
Practice Guidance 83.2-83.4 goes further and provides clear rules in relation to the limits a CCG can place on individual choice and the circumstances in which a CCG can decline to provide care in the individual’s preferred setting of care.
“In many circumstances there will be a range of options for packages of support and their settings that will be appropriate to the individual’s needs. The starting point for agreeing the package and the setting where NHS Continuing Healthcare services are to be provided should be the individual’s preferences.
[…] In some situations a model of support preferred by the individual will be more expensive than other options. CCGs can take comparative costs and value for money in account when determining the model of support to be provided but should consider the following factors when doing so:
a)The cost comparison has to be on the basis of the genuine costs of alternative models.
b)Where a person prefers to be supported in their own home, the actual costs of doing this should be identified on the basis of the individual’s assessed needs and agreed desired outcomes.
c)Cost has to be balanced against other factors in the individual case, such as the individual’s desire to continue to live in a family environment (see the Gunter case)”.
It is fundamental that NHS Continuing Healthcare is used to meet persons varying care needs in a variety of care settings.
The provisions detailed in Paragraphs 56, 167 and Practice Guidance 83 of the Framework is clear recognition that a person’s eligibility for NHS Continuing Healthcare should not be determined on the basis of the setting of the care provision, and nor it is appropriate for every eligible person’s right to receive NHS funded to be restricted to the provision of care in a care home setting on the basis that the provision of care in a care home setting is the cheaper option for the responsible CCG.
If an eligible disabled person’s care needs can be adequately met through the provision of NHS funded care in the Community, then to impose a policy which implements a cap on funding and may prevent disabled persons from continuing to live in the Community is quite simply ludicrous and contravenes a disabled persons:
The 44 CCGs should also be mindful to ensure they comply with the duty imposed by Section 149 of the Equality Act 2010, which places an obligation of a public authority, in the exercise of its functions, to have due regard to the need to elimination discrimination, and advance equality of opportunity between persons who share a “protected relevant characteristic” and persons who do not share it. “Disability” constitutes a “protected relevant characteristic” within Section 4 of the Act.
It is interesting that the situation many disabled persons under the care of the 44 CCG’s in question find themselves in is analogous to the case of Gunter v South Western Staffordshire Primary Care Trust  (“Gunter”).
In Gunter, a severely disabled woman wished to continue living with her parents whereas the PCT’s preference was for her to move into a care home. The court found that Article 8 of the ECHR had considerable weight in the decision to be made, that to remove her from her family home was an obvious interference with family life and so to remove her from her family home was an obvious interference with family life and so must be justified as proportionate. Cost could be taken into account but the improvement in the young woman’s condition, the quality of life in her family environment and her express view that she did not want to move were all important factors which suggested that removing her from her home would require clear justification.
The suggestion that disabled persons who wish to continue to receive care provision at home, and who do not wish for their NHS funded care to be provided in a care home setting, should find the funds to ‘top-up’ the NHS funding if they want to stay in the family home is entirely unacceptable and contradicts the Framework’s guidance at Practice Guidance 99.2 which states:
“It will not usually be permissible for individuals to pay for higher-cost services and/or accommodation” (i.e. individuals should not be expected to ‘top-up’ NHS funded care).
All we can hope is that the 44 CCGs involved review their seemingly unlawful ‘cap policy’ in response to the questions put forward by the EHRC as a matter of urgency, to ensure that the rights of disabled persons to receive NHS funded care both in the Community and in a Care Home or Hospice setting are upheld.
It is clear on the basis of the provisions contained within the Framework, the relevant legislation and the Gunter Case, that to continue with the ‘cap policy’ and/or request disabled persons ‘top-up’ their NHS funded care is plainly wrong and seemingly unlawful.
Sadly, restrictions such as this are an all too common story for many, and we regularly act for clients in relation to funding disputes with CCGs who seek to impose policies which restrict their right to NHS funded care, or interpret the provisions of the Framework incorrectly.
National Framework for NHS Continuing Healthcare