Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of T (1)
|- and -
|THE LONDON BOROUGH OF HARINGEY
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr J Presland (instructed by Head of Legal Services, Haringey LBC) for the Defendant
Ms R Haynes (instructed by Capsticks, Solicitors) for the Defendant
Crown Copyright ©
Mr Justice Ouseley :
"? Help in the home/respite care
Families' needs for help vary, as does provision in different parts of the country. Some parents of children with tracheostomies have no extra help. However, if your child needs very frequent suctioning at night, you may become too tired to cope by day. If you have other small children to cope with, extra help might be needed in the home or with taking children to school. Sometimes the social services department can provide help in the home or with other children. They are usually not able to provide someone to care for your child with a tracheostomy, although some areas can arrange this. Help at night can sometimes be provided by the health authority, using carers with nursing skills or training in the care of a tracheostomy. Respite care for a child can sometimes be arranged to allow you to have a break and perhaps go away with your other children"
"? School or nursery
Many children with tracheostomies are successfully placed in ordinary (mainstream) schools and nurseries. They must, however, have a carer with them at all times who is ready to carry out suction and to perform an emergency tube change, if necessary. This carer does not have to be a nurse, but must be trained in tracheostomy care and must not have other duties that would take him or her away from your child"
"It is now over 6 months since Paulette Blake, Continuing Care Nurse Specialist left her post at Haringey PCT. As you know, Paulette was responsible for arranging and coordinating [D's] care package. The post is currently unfilled pending a decision on how best to use the resources across North Central London.
In the meantime, I have arranged for the Camden and Islington Team to carry out an up to date Health Needs Assessment for [D]. This will look at [D's] current needs and review her care packages; jointly with the North Middlesex Hospital Children's Homecare Nursing Team."
"3-4 nights, 10 hours a week trained carer support – social and health funded. This would leave 3-4 nights a week when mum will almost certainly have an interrupted nights sleep. It is essential to try and maintain continuity of carer/nurse for [D] and her mother. A trained health care assistant could very suitably provide this care. It is also essential to ensure that the times that mum wants the respite should be paramount and that the responsibility of the agency is to meet this.
Once [D] is at nursery this should enable mum to have certain amount of free time. However at the moment mum is planning to stay with [D] at nursery as no one has been allocated to provide the one to one support that [D] will need in nursery to ensure her safety. Until [D] is of statutory school age the responsibility to fund this carer should fall to health and/or social. Until this is funded then the current arrangement should be continued whereby the agency nurse does 1 8 hour shift a week and should take [D] to nursery.
During the weekend visits of [D's] older sister, mum needs 4 hours of respite each day that her sister is home."
"1. The PCT does not agree with the Local Authority that the PCT should provide an additional 10 hours per week of night respite care. The 20 hours of respite care per week is considered fair and adequate: indeed, it is understood that [D's] family health visitor has recently been informed by her mother that [D] now sleeps though most nights, unless she is unwell; more generally, we are instructed that [D] is meeting all her developmental milestones and doing well – with communication as in other areas of her life.
3. As for the nursery, additional assistance could be considered, but the PCT's staff originally put forward for consideration a contribution of one session, in conjunction with such provision from Social Services and Education subject to the outcome of the statementing process."
The statutory provisions
"(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
(10) For the purpose of this Part a child shall be taken to be in need if-
(c) he is disabled,
(11) For the purposes of this Part, a child is disabled if he is substantially and permanently handicapped by illness, injury or congenital deformity."
"(1) Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area.
(6) Every local authority shall provide services designed-
(a) to minimise the effect on disabled children within their area of their disabilities; and(b) to give such children the opportunity to lead lives which are as normal as possible."
"(1) Where it appears to a local authority that any authority…mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority…, specifying the action in question.
(2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions"
"(1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely-
(a) the provision of practical assistance for that person in his home;(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;( c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;then,…subject…[…to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State)] [and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State)], it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.
28A Application of Act to authorities having functions under the Children Act 1989.
This Act applies with respect to disabled children in relation to whom a local authority have functions under Part III of the Children Act 1989 as it applies in relation to persons to whom section 29 of the National Assistance Act 1948 applies."
"It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement – (a) in the physical and mental health of the people of those countries, and (b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act."
"to provide throughout England and Wales to such extent as he considers necessary to meet all reasonable requirements – (a) hospital accommodation …
(c) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service;
(f) such other services as are required for the diagnosis and treatment of illness."
"(1) Nothing in the enactments relating to the provision of community care services shall authorise or require a local authority in or in connection with the provision of any such services, to-
(a) provide for any person, or
(b) arrange for any person to be provided with,
nursing care by a registered nurse.
(2) In this section "nursing care by a registered nurse" means any services provided by a registered nurse and involving-
(a) the provision of care, or
(b) the planning, supervision or delegation of the provision of care,
other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse"
Discussion and Conclusions
29. …The section should not be regarded as preventing a local authority from providing any health services. The subsection's prohibitive effect is limited to those health services which, in fact, have been authorised or required to be provided under the 1977 Act. Such health services would not therefore include services which the Secretary of State legitimately decided under section 3(1) of the 1977 Act it was not necessary for the NHS to provide… The true effect is to emphasise that 1948 Act provision, which is secondary to 1977 Act provision, may nevertheless include nursing care which properly falls outside the NHS.
30 (a) The Secretary of State can exclude some nursing services from the services provided by the NHS. Such services can then be provided as a social or care service rather than as a health service.
( c) The fact that the nursing services are to be provided as part of social services care and will have to be paid for by the person concerned, unless that person's resources mean that he or she will be exempt from having to pay for those services, does not prohibit the Secretary of State from deciding not to provide those services.
(d) The fact that some nursing services can be properly regarded as part of social services care, to be provided by the local authority, does not mean that all nursing services provided to those in the care of the local authority can be treated in this way. The scale and type of nursing required in an individual case may mean that it would not be appropriate to regard all or part of the nursing as being part of the package of care which can be provided by a local authority. There can be no precise legal line drawn between those nursing services which are and those which are not capable of being related as included in such a package of care services.
(e) The distinction between those services which can and cannot be so provided is one of degree which in a borderline case will depend on a careful appraisal of the facts of the individual case. However, as a very general indication as to where the line is to be drawn, it can be said that if the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide to the category of persons to whom section 21 of the 1948 Act refers and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, then they can be provided under section 21. It will be appreciated that the first part of the test is focusing on the overall quantity of the service and the second part on the quality of the services provided.
(f) The fact that care services are provided on a means tested contribution basis does not prevent the Secretary of State declining to provide the nursing part of those services on the NHS. However, he can only decline if he has formed a judgment which is tenable and consistent with his long-term general duty to continue to promote a comprehensive free health service that it is not necessary to provide the services. He cannot decline simply because social services will fill the gap.
31. It follows that we do not accept the judge's conclusion that all nursing care must be the sole responsibility of the NHS and has to be provided by the health authority. Whether it can be provided by the local authority has to be determined on an assessment of the circumstances of the individual concerned. The Secretary of State accepts that, where the primary need is a health need, then the responsibility is that of the NHS, even when the individual has been placed in a home by a local authority. The difficulty is identifying the cases which are required to be placed into that category on their facts in order to comply with the statutory provisions. Here the needs of Miss Coughlan and her fellow occupants were primarily health needs for which the health authority is as a matter of law responsible, for reasons which we will now explain".
"34…On the contrary, section 2 of the 1970 Act expressly provided that local authorities were to comply with their obligations under that section in the exercise of their functions under section 29 of the 1948 Act "notwithstanding anything in any scheme made by the authority under section 29". Just as the Secretary of State might be able to impose a duty on local authorities, enforceable by individuals, to exercise their functions under section 29, so section 2 of the 1970 Act could impose a similar duty.
35. Once this is appreciated, there is no difficulty in interpreting sections 2 and 28A of the 1970 Act as requiring local authorities to comply with the requirements of section 2, in so far as these apply to children, by the exercise of their functions under Part III of the Children Act, of which section 17 is particularly relevant. In our judgment this is the correct interpretation of those sections, as Mr Kovats has submitted. It is the only interpretation that produces a coherent legislative scheme.
36. It follows that, where a local authority provides services in accordance with obligations imposed by section 2 of the 1970 Act by exercising functions under section 17 of the Children Act, the provision of those services is subject to such rights to charge as are conferred by section 29 of the Children Act."
"In the event the housing authority were able, without in their view unduly prejudicing the discharge of any of their functions, to co-operate in arrangements whereby the children of Mr Smith did not suffer from lack of accommodation. The social services authority are responsible for children and the housing authority are responsible for housing. The two authorities must co-operate. Judicial review is not the way to obtain co-operation. The court cannot decide what form co-operation should take. Both forms of authority have difficult tasks which are of great importance and for which they may feel their resources are not wholly adequate. The authorities must together do the best they can."
"It must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid the risk must be tantamount to gross negligence or wilful disregard of the duty to protect life.
For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case."
"Such positive obligations may exceptionally arise in the case of the handicapped in order to ensure that they are not deprived of the possibility of developing social relations with others and thereby developing their own personalities. In this regard, the Commission observes that there is no water-tight division separating the sphere of social and economic rights from the field covered by the Convention.
In the case of the physically handicapped, the above-mentioned positive obligations require appropriate measures to be taken, to the greatest extent feasible, to ensure that they have access to essential economic and social activities and to an appropriate range of recreational and cultural activities."
"As illustrated in the Cambridge Health Authority case  1 WLR 898 and Coughlan's case  QB 213, it is an unhappy but unavoidable feature of state funded health care that regional health authorities have to establish certain priorities in funding different treatments from their finite resources. It is natural that each authority, in establishing its own priorities, will give greater priority to life-threatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighting of priorities is clearly a matter of judgment for each authority, keeping well in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible…
However, in establishing priorities – comparing the respective needs of patients suffering from different illnesses and determining the respective strengths of their claims to treatment – it is vital for an authority: (1) accurately to assess the nature and seriousness of each type of illness; (2) to determine the effectiveness of various forms of treatment for it; and (3) to give proper effect to that assessment and that determination in the formulation and individual application of its policy."
At p 995G he said :
"Article 8 imposes no positive obligations to provide treatment,"
and at p 996C approved this observation of Hidden J at first instance:
"The Convention does not give the applicants rights to free healthcare in general or to gender reassignment surgery in particular. Even if the applicants had such a right it would be qualified by the authority's right to determine healthcare priorities in the light of its limited resources."
"A number of propositions are clearly established, mainly by the decision of this court in R v Cambridge Health Authority ex p B  1 WLR 898. They are 1. A health authority can legitimately, indeed must, make choices between the various claims on its budget when, as will usually be the case, it does not have sufficient funds to meet all of those claims. 2. In making those decisions the authority can legitimately take into account a wide range of considerations, including the proven success or otherwise of the proposed treatment; the seriousness of the condition that the treatment is intended to relieve; and the cost of that treatment. 3. The court cannot substitute its decision for that of the authority, either in respect of the medical judgments that the authority makes, or in respect of its view of priorities.
I further agree with Mr Pannick's submission that it follows from the foregoing propositions that a health authority can in the course of performing these functions determine that it will provide no treatment at all for a particular condition, even if the condition is medically recognised as an illness requiring intervention that is categorised as medical and curative, rather than merely cosmetic or a matter of convenience or lifestyle.
In all of this, the court's only role is to require that such decisions are taken in accordance with equally well known principles of public law. Those principles include a requirement that the decisions are rationally based upon a proper consideration of the facts. The more important the interest of the citizen that the decision affects, the greater will be the degree of consideration that is required of the decision-maker. A decision that, as is the evidence in this case, seriously affects the citizen's health will require substantial consideration, and be subject to careful scrutiny by the court as to its rationality.
"…it is plain that in this case there has occurred no interference with either the applicants' private life or with their sexuality. The ECHR jurisprudence demonstrates that a state can be guilty of such interference simply by inaction, though the cases in which that has been found do not seem to go beyond an obligation to adopt measures to prevent serious infractions of private or family life by subjects of the state … Such an interference could hardly be founded on a refusal to fund medical treatment."
"As Mr Pannick observed, if the applicants have no case under article 8 of failure to respect their private and family life, they could not, a fortiori, establish that they were victims of inhuman or degrading treatment under article 3 since the same essential issues arise: see Olsson v Sweden (1988) 11 EHRR 259, 292, paras 85-87. And, as he also observed, a breach of the article requires "a particular level" of severity which, of course depends on the circumstances of the case. It is plain, in my view, that article 3 was not designed for circumstances of this sort of case where the challenge is as to a health authority's allocation of finite funds between competing demands."
"Article 3 of the ECHR addresses positive conduct by public officials of a high degree of seriousness and opprobrium. It has never been applied to merely policy decisions on the allocation of resources, such as the present case is concerned with. That is clear not only from the terms of article 3 itself, and the lack of any suggestion in any of the authorities that it could apply in a case even remotely like the present, but also from the explanation of the reach of article 3 that has been given by the Convention organs."