In a recent decision, the High Court concluded that NHS Croydon CCG had adopted a flawed decision- making process in assessing the continuing care needs of a seven-year-old boy with a tracheostomy. In doing so, the court also clarified that the interpretation of section 1 of the Localism Act 2011 cannot stretch as far as to empower a local authority to provide medical care, which is clearly within the remit of the NHS, despite the claimant trying to argue the contrary.
The claimant applied for judicial review of a decision of NHS Croydon CCG not to award Children's NHS Continuing Care to the young boy (JP), who, after having brain-tumour removal surgery, was fitted with a tracheostomy and supported by mechanical ventilation at night.
The decision challenged was made in November 2019 when the CCG concluded that JP was no longer eligible for continuing care and reduced his scale of weekly night-time care. In May and August, JP had been assessed to need 63 hours per week of night-time care and 45 hours per week of daytime care during the school term which had now been reduced to four nine-hour nights in term time, and five nine-hour nights during holiday time. In making this decision, the CCG assessed the claimant's level of need as no longer being "severe", after looking at the outcome of an ongoing sleep trial reviewing whether the claimant could manage without ventilation overnight.
High Court’s conclusions
The court pointed to three major flaws in the CCG’s decision-making process, namely that:
- A trial was only partially run and, the specialist nurse presented a partial conclusion to the deputy director of continuing healthcare at the CCG. However, the information then presented to the panel showed a clear conclusion that the sleep studies demonstrated that JP could manage long-term without the aid of night-time ventilation.
- The CCG had failed to take account of new evidence when he was put back on night-time ventilation. And he had been on it ever since. In the court’s view, this was a fundamental change of circumstances, which should have been properly considered, as it could have led to a significant change in the scoring process.
- The court did not accept that the deputy director of continuing healthcare should act alone in deciding that the new evidence was not capable of altering the original decision made by the CCG.
The court also took this opportunity to clarify the general powers of the Localism Act 2011. This came about as the claimant sought that a mandatory order should be granted by the court requiring the local authority to conduct a reassessment of JP’s entitlement to care and support pursuant to section 17 of the Children Act 1989.
The court made clear that empowering Croydon London Borough Council to make a medical decision “would usurp decisions reposed in the NHS and its bodies. I cannot accept that the 2011 Act should be construed as driving a coach and horses through very carefully delineated frontiers of competence and function between the NHS on the one hand and local authorities on the other.”
Lottie Hartescu and Katrina McCrory