A recent Administrative Court decision successfully challenges an ICB’s (Integrated Care Boards) decision of eligibility for Continuing Care based on outcome and process irrationality.
The decision in R (on the application of WND by his litigation friend WSA) v NHS West and North London Integrated Care Board v London Borough of Haringey highlights that, although ICBs may use formal assessment tools such as the Decision Support Tool (DST) and Continuing Care Health Assessment Tool, their use does not necessarily protect a decision from challenge where significant evidence has not been properly taken into account.
For ICBs, the decision is worth noting.
Background
WND is a 13-year-old boy who suffers from complex medical disabilities, with one serious aspect of his disability being that he suffers from intermittent seizures. He lives at home with his parents.
The ICB has provided continuing care since June 2015 and from 2023, a care package that includes 63 hours of care per week at a 2:1 ratio. WND also receives education support. The plan did not include provision for 24/7 care, instead it provided for nine hours of nursing care each day.
The central issue was whether the level and nature of the ICB’s care package, including its decision not to provide 24/7 care, was rational.
The ICB undertook an updated assessment of WND’s needs using its DST, which assessed WND as ineligible for continuing care.
However, the Continuing Care Panel (CCP) did not adopt the DST recommendation and subsequently determined that his care package of 63 hours per week at a 2:1 ratio would continue.
His case was that the ICB’s decision was reached following an irrational process, relying on both process and outcome irrationality.
Decision
The Court agreed with WND’s case and quashed the ICBs CCP decision, finding that it was in the interests of all parties that the matter should be reconsidered.
Drawing on established case law and the National Framework for Children and Young People’s Continuing Care, the Court emphasised that where a report by a clinician is made which clearly recommends 24/7 nursing care, it would be illogical to disregard it or misinterpret it either as a matter of process or outcome irrationality.
Outcome irrationality
In reaching its decision, the Court relied on R (Simpson) v NHS Mid and South Essex ICB (a case in which Mills & Reeve acted for the ICB; see our blog, High Court dismisses challenge to NHS Continuing Health Care provision) and the conventional standard of reasonableness. The questions the Court considered were:
“(a) whether the outcome is beyond the range of reasonable responses
(b) whether the reasoning process involves a recognised species of error of approach (e.g. an error of logic or the disregard of an obviously relevant consideration)
(c) whether there was an insufficiency of reasonable inquiry.”
The Court concluded that the decision not to provide for 24/7 care falls into a very small number of cases where it was outside the range of reasonable responses.
Process irrationality
The Court relied on R (KP) v Secretary of State for Foreign and Commonwealth Affairs. It noted that the process of reasoning should contain no logical error or critical gap.
Following this, the Court concluded that the process by which the decision was made was not reasonable where a clinical report made it clear the 24/7 nursing care was clearly recommended.
Comments
For ICBs facing challenges to their Continuing Care assessments, WND is a reminder that where clinical evidence clearly recommends a particular level of care, that evidence must be properly considered and should not be disregarded or misinterpreted in the decision-making process.
If an ICB has concerns about, or disagrees with, the clinical recommendation, it should seek clarification from the relevant clinician or expert and obtain evidence to support any departure from that recommendation.
The decision is also important for what it says about alternative remedies to judicial review. While recognising that the NHS complaints process will ordinarily provide an adequate alternative remedy, as confirmed in R (GVH) v Leicester, Leicestershire and Rutland ICB (see our blog, High Court backs NHS complaints process), the Court held that judicial review was justified in this case where there is a loss of confidence in the process and where assurances by an ICB are not given.
The process for determining eligibility for Continuing Care is crucial for ensuring ICB decisions are properly reasoned and can withstand challenges of irrationality. The National Framework for Children and Young People’s Continuing Care provides helpful guidance to ICBs on the decision-making processing.
For practical advice on Continuing Care assessments, decision-making or challenges, contact Neil Ward or a member of our health and care team.
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