Liability as between the LA and the NHS, for at-home maintenance of a 3 year old child’s tracheostomy tube at night, was the issue – the mother, having been trained by the nurse, being content to do it during the day, but not to wake three times at night to do it then, too.
The court thought that adults’ services principles re responsibilities for people in a care home, as set out in Coughlan, should apply to children too, even out of institutional settings.
The PCT funded 20 hours a week suctioning, and Haringey LBC unwillingly provided for another 10 hours a week under s17 Children Act, when a paediatrician recommended it, so as to give the mother a break.
The LA was found to have no power to provide care which was in the nature of health care in the community, despite the width and breadth of s17. The court drew on the mere existence of the NHS legislative framework as limiting the interpretation of the Children Act, even though there is no express reason to take that line as there was with the interface between the NAA and the NHS legislation in Coughlan.
The court held that the scale and type of nursing care was relevant to this question, as was the question whether its provision is incidental or ancillary to the provision of some other service which the social services authority is lawfully providing, and finally, whether it is of a nature which a social services authority can be expected to provide.
Here, the main factors in applying that test were that a) care was designed to deal with the continuing medical consequences of an operation and to avoid very significant risks, and b) without the care the child would have to stay in hospital, and c) (they thought) tracheostomy care would be enough to trigger eligibility for NHS continuing care for adults (!!) and (best of all) d) the fact that the care COULD be provided by unqualified carers did not convert what was essentially medical or nursing care into social care….
Sadly for the mother, who tried a human rights argument in relation to the replacement respite needing to come to the PCT, the court held that the general discretionary nature of NHS services, subject to reasonable requirements, was fatal to her claim that they must fund it. On the child’s argument that the 20 hours only would be a breach of article 2, or article 8, the court disagreed, effectively saying that 20 hours was not out of line with other cases and was generous enough not to be unreasonable and within the wide margin of appreciation the state has in allocation of resources to competing priorities.
So the result was that the mother now has to go without the care, unless the NHS guidance that there should in fact BE no gaps between social care and health care, even though the statutory framework allows for one in theory, (see Grogan judgment) were to be forced upon the PCT, for instance through Patricia Hewitt giving them a visit….
For adults in particular, being cared for in the community, with complex split packages, and those who are terminally ill, the court said another useful thing, when the LA is at loggerheads with the PCT. It said that the scope of s2 CSDPA – under which LAs provide home care – is also impliedly restricted by reference to the NHS legislative framework. So if anyone was ever suggesting that LAs should buy something that was obviously nursing type care in the community, or in residential care homes, they would be very much mistaken – LAs would simply have no power so to do. This is important because some PCTs try this argument on, when, in the case of adults needing complex care, unqualified relatives have felt constrained to accept training from the district nurse in order to enable their loved one to stay at home, and then prove to be unable or unwilling to continue – the PCT will sometimes say that the history shows that it is now an LA duty to pick up the shortfall.