Recent Judgments have highlighted the vulnerability of decisions made by our Health and Social Care Trusts to challenge by way of Judicial Review
Challenging Times for our Health Trusts
Some recent Judgments of the High Court in Northern Ireland have highlighted the vulnerability of decisions made by our Health and Social Care Trusts to challenge by way of Judicial Review.
In Re McClean’s (Kathleen) Application  NIQB 19, the applicant was a 75-year-old lady who was confined to a wheelchair. Mrs McClean benefitted from home help social care provision, which included assistance with the preparation of meals, dressing and, until withdrawn in September 2008, home-cleaning help. Mrs McClean contended that this service previously consisted of hoovering carpets and washing of the kitchen and bathroom floors once a week. Since the Trust withdrew the service, Mrs McClean was forced to privately pay for a cleaner, at a cost of around £40 per week. Amongst other things, Mrs McClean contended that the withdrawal of the cleaning service placed a considerable drain on her resources and independence. Mrs McClean sought to challenge the Trust’s decision by way of Judicial Review, arguing that the withdrawal of the cleaning service and certain other services had been unlawful, with regard to the Trust’s obligations to her under Article 15 of the Health and Personal Social Services Order (Northern Ireland) 1972 and Section 2 of the Chronically Sick and Disabled Persons (Northern Ireland) Act 1978, as interpreted with reference to relevant Trust policy.
In delivering Judgment in this case, Mr Justice McCloskey stated that it was clear that Mrs McClean was a proud and independent lady, whose wish was to preserve her independence, privacy and dignity for as long as possible. The Judge stated that the relevant Policy relied upon by the Trust to govern the discharge of their legal obligations in these matters, Department Circular ECCU2/2008, and the criteria laid down therein, correctly aimed to distribute the Trust’s finite resources amongst those members of the population assessed as having the greatest needs. He stated that the policy itself was rational, legal and fair, and in words which echo the spirit of the times, he said:
“The Circular is an admirable attempt to ensure, so far as humanly possible, that the beneficiaries of the progressively shrinking “cake” are those members of society in greatest need.”
However, when tasked with examining how the policy had been applied to assess Mrs McClean’s needs, the Judge concluded that the Trust had failed to properly apply the Policy, insofar as it had failed to assess Mrs McClean’s needs appropriately. Nor was it apparent that there had been sufficient assessment of her financial resources, when “a simple exercise, falling far short of an accountancy audit, is all that is required.”
The Judge consequently issued a Declaration that the decision to remove the cleaning service, amongst other services, was unlawful and declared that the Trust must reassess Mrs McClean’s needs in accordance with their own Policy.
In the separate case of re PF and JF’s Application  NIQB 20, an anonymised application for Judicial Review was brought on behalf of PF, a person under a disability, by his brother, JF, to challenge the amount of direct payments being made to JF for the benefit of PF, to reflect the costs of caring for him.
It was argued that the reduced amount of direct payments authorised by the South Eastern Health and Social Care Trust were unlawful. Once again, the decision under scrutiny concerned the basis of the assessment of the applicant’s care needs and it was asserted by the Applicant in this case that PF, having a severe learning disability and a range of other disabilities, required 24-hour care and supervision. PF had been cared for by his brother, JF, since their mother passed away in 2008. When JF moved to Bangor in 2003, the South-Eastern Trust assumed responsibility for PF’s care provision, and wrote to JF to advise that it could not sustain the same level of direct care payments as the Belfast Trust had done when he was living in Belfast. For a certain period of time, care funding was withdrawn altogether by the South-Eastern Trust, primarily based upon the reasoning that PF was living with JF full-time, and which JF argued had led to him experiencing severe financial difficulties, resulting in his home being repossessed. The Trust eventually reinstated payments, but still, as claimed by JF, at an unfairly and unlawfully low level.
Again, the Trust had aimed to discharge its legal obligations with reference to a department Circular policy document (in this case (ECCU) 1-2010). Once again, the relevant Policy provided that state benefits were not to be taken into account when considering care needs and once again, the applicant claimed that state benefits had erroneously featured in the Trust’s assessment.
Lord Justice Girvan delivered Judgment in this case, concluding that the Trust’s duty in every instance was to identify and assess the actual needs of the patient, which exercise must include consideration of the cost of meeting such needs. Having assessed the needs, the Trust is then obliged to make arrangements to meet those needs. This view resonated with that of Lord Nicholls in the House of Lords (Supreme Court) decision in Ex-Parte Barry  AC 584.
In the instant case, the Judge held that PF’s needs were considerable, that 24-hour care was required, and therefore that the Trust was not permitted to fix the level of direct payments at an unfairly low level, which the Trust had sought to do, premised on the argument that it was essentially up to the family to provide the unfunded portion of care to meet the overall level of care required.
Finally, in an as yet unpublished decision of Justice McCloskey in an anonymised case involving an autistic child whose parents had spent more than £40,000 on private care, the parents challenged the level of support provided by the relevant Trust. Again the Trust in question was found wanting due to a lack of proper assessment of the child’s care needs and in this case, and due to a lack of regard to their duty pursuant to the Children (Northern Ireland) Order 1995, of which the central tenet is, that the ‘needs’ of the child are always paramount. The Judge therefore granted a declaration to the Applicant in this case that the Trust had failed to take steps to assist the child to lead as normal a life as possible.
It is clear that the above cases throw up common and interesting issues for both patients and for relatives of those receiving care, and of course, for the Health Trusts themselves. In the current climate, and the drive to reduce public expenditure, it appears that the Courts will still be willing to scrutinise the manner in which Trust Policy is applied, particularly when this affects those most at need in our society. Anyone considering challenging a public body by way of Judicial Review should seek urgent legal advice at the very outset, particularly as very strict time limits apply in these cases. Legal Aid funding continues to be available in appropriate cases and can be sought on an urgent basis.
If you or a relative have been affected by the decision of a Health Trust or Education Board to remove or curtail funding or provision of resources please contact Brian Moss.