By David Lock QC
One of the perennial challenges for the NHS and for local authorities is working out which services should be commissioned by the NHS and which services should be commissioned by other public bodies, notably local authorities. This difficulty is particularly acute in commissioning complex packages of care for children where emotive issues are at stake and the cost can run into hundreds of thousands of pounds per year. In practice services for a child will often have a single provider, and thus the issues are (a) how many of the child’s needs should be met within the package, and (b) how should the cost be divided between health, social services and education?
In March 2010, shortly before the last General Election, the government published the “National Framework for Children and Young People’s Continuing Care”1 which provides a Decision Support Tool for NHS bodies to follow to determine if a child’s needs justify Continuing Care (referred to here as “Children’s CHC”). The scheme looks similar to the National Framework for NHS Continuing Care for adults but there are a number of key differences:
  • The Guidance for Adult is given legal effect by Directions issued under section 8 of the NHS Act 2006. There are no Directions to support the Guidance for Children’s CHC. Hence it is “only Guidance” and PCTs could theoretically depart from the Guidance if they have a good reason to do so.
  • Once an adult is deemed eligible for NHS Continuing Care, the NHS takes on the responsibility for meeting the costs of providing accommodation, meals and social care for that person. However a decision that a child is eligible for Children’s CHC does not have that effect. If a child is eligible for Children’s CHC the local authority are still responsible for meeting their share of the costs of the education to be provided to the young person, and (in many cases) for providing accommodation, meals and social care.
  • The decision as to whether an adult is eligible for NHS Continuing Care is a decision that should be taken by the PCT alone (usually through a CHC Panel). Decisions as to whether a child is eligible for Children’s CHC and the support package to be provided to that child are recommended by the Guidance to be taken at a “multi-agency decision-making forum”. Thus a single, multi-agency decision making body appears to be required to decide (a) whether the child is eligible for Children’s CHC (based on the report of a nominated health assessor), (b) if so, what contribution should be may by the PCT to the overall costs of the package of care for the child, (c) what contributions are to be made by the local authority (and possibly other agencies), and (d) what overall package is to be offered to the child. With the mayhem going on at moment in NHS management it appears that not all PCTs have set up a multi-agency decision-making forum to make these decisions, but the feedback that I have had is that those PCTs and local authorities who have such panels (many of which pre-date the March 2010 Guidance) find they work well in practice.
Who funds what element of the package?
One crucial question is left entirely unanswered in the Guidance, namely “how much should the NHS contribute to a complex care package for a disabled child and how much should be paid by the local authority”. The Guidance does not provide any guidance about how NHS bodies and local authorities should approach the division of costs between health, social services and education in the overall costs of providing a complex package of care to a child. The situation is thus similar to aftercare services provided under section 117 of the Mental Health Act 1983 for patients who require community services after being detained under section in a mental hospital. The duty under section 117 is a joint duty between the PCT and the local authority, and there is no guidance as to how PCTs and councils should divide the costs.
In the absence of any guidance it may be sensible to go back to first principles. The location at which a child is provided with Children’s CHC ought to be irrelevant. Hence it does not matter whether services are provided in a hospital or in the child’s own home. The NHS exists to provide health services, which are almost always the services of professional healthcare workers (doctors, nurses, physiotherapists, OTs etc). Those professional healthcare workers may prescribe drugs or use equipment, but those costs flow from the provision of their services. The local authority’s duties are to provide education and social care, and do not extend to providing or funding healthcare services. In the absence of any other guidance, I would recommend that PCTs and local authorities should start from the principle that their contribution to the overall costs of a joint package of care should approximate to the cost of the healthcare and non-healthcare inputs for the child. These costs will vary depending on the circumstances. For a child with complex or unstable medical needs and regular input from doctors and nurses, the PCT element could be a very substantial proportion of the cost of the overall package. However for a child with learning difficulties producing challenging behaviour but with no diagnosed mental health condition, the vast majority of the costs may be the provision of social care and education.
The extent of a package of care?
Packages of care for children with complex needs can be eye-wateringly expensive. However there is no reason in principle why the fact that the patient or service user is a child requires the PCT or the local authority to provide more resources to support that package than if the patient was an adult (other than the duty to provide education services which are not present for adults). Children are entitled to a fair allocation of state resources for health and social care but it is perhaps important to state that children do not, by virtue of their status as children, have a right to claim a greater share of NHS or social services resources.
Neither the NHS nor local authorities have a legal duty to provide packages that are in the “best interests” of a child. Both NHS care and the provision of social services are inevitably restricted by the resources available to the NHS. The care for children is not exempted from the principles of resource allocation and prioritisation. Thus, in order to stay within the law, PCTs do not need to provide a service to meet every healthcare need for a child just as they are not required to do for adults. Equally social services are not required to meet every social care need. Public bodies need to have clear policies on what services are made available to which patients, including children, and then provide services in accordance with those policies. This can mean that some needs will be unfulfilled but, provided the decision has been made in a rational way after a proper process, the decision will be lawful and upheld by the courts.
Both PCTs and local authorities also need to be aware that children who need complex packages will almost certainly be disabled and thus these decisions will engage discrimination law duties under the Equality Act 2010.
With funding under pressure at both PCTs and local authorities, expensive packages of care for children are coming under severe pressure. Thus both PCTs and local authorities need to be careful to follow clear, well documented procedures in making decisions about the funding and allocation of complex care packages. If they do not do so then they will leave themselves open to legal challenges.