Abstract
The Background
The Case of Booker concerned a 19 year old girl living in the Oldham area who, at the age of 9, suffered catastrophic injuries whilst a passenger in a car which left her tetraplegic and ventilator dependent.
A personal injuries claim was brought successfully and Judgement was entered on a 100% liability basis. The case was settled just as she turned 18 in 2009. She received her award in two forms; a lump sum and an annual payment for her future care and case management. The latter payment was to commence in December 2011 and in the meantime, the Claimant, who had received statutory care from the PCT in her own home, proposed to rely upon the same until December 2011.
The Personal Injury Settlement
The award was structured in this way because she had previously been under the Paediatric Ventilator Care Team but upon majority, was in transition to the Adult Team. It was considered appropriate to let this change bed in before imposing yet a further change to a private healthcare team, who would have to be trained alongside the Adult Team, hence the delay of 2 years from settlement.
The Order in the personal injuries case contained a number of cross undertakings. The Insurers liable to pay the compensation undertook that if for any reason the PCT withdrew their care, that the Insurer would step in and indemnify her for the cost of acquiring care privately, capped at the agreed annual care costs of £2.9m. The Claimant in turn undertook to use her best endeavours to ensure continuation of PCT funding up to December 2011.
It was this undertaking which the PCT sought to rely upon in deciding that they would indeed withdraw care prior to December 2011 and that they no longer had a statutory duty to provide the same.
The Statutory Framework
In order to understand the arguments raised by the PCT, it is necessary to have regard to the statutory framework. The National Health Service Act 1946 provides for a comprehensive system, free to all at the point of delivery regardless of means. This principal was enshrined in the NHS Constitution 2010 which has as its central tenets:
The NHS provides a comprehensive service available to all; Access to NHS services is based on clinical need, not an individual's income.
Section 2 (4) of the Law Reform (Personal Injuries) Act 1948 allows a person with a compensation claim to pursue private treatment and care. This concept dovetails with the the “tortfeasor pays” principle, which prevents a Defendant in such a claim from arguing that its liability should be limited because of the availability of state care. Therefore, a Claimant seeking compensation for care has the right to recovery of his or her needs from the tortfeasor, even where those needs could be met by statutory funding. This is the case even where it can be demonstrated that a public body has an enforceable duty to provide the Claimant with services. (See Peters –v– East Midlands strategic HA and Another, CA 2010).
The primary piece of legislation governing the provision of healthcare in England and Wales is the National Health Service Act 2006. It places on the Secretary of State and therefore a PCT “a duty to continue the promotion in England and Wales of a comprehensive health service”. Importantly, this duty is a target duty, not a specific duty owed to a specific individual and it is therefore aspirational and qualified. This distinction is important in understanding the PCTs approach in this case.
The case of Coughlan (R –v– North and East Devon HA ex parte Coughlan) provided some guidance as to the nature and scope of the duty. It stated that the Secretary of State and therefore a public body's duty under section 3 of the Act, was qualified in two ways:
“First of all there is the initial qualification that his obligation is limited to providing the services identified to meet all reasonable requirements”
And secondly;
“the secretary of state is entitled to take into account the resources available to him and the demands on those resources”
Section 3 of the 2006 Act does not, however, state what factors a PCT is required to take into account in the exercise of its discretion. Whilst a PCT could not act irrationally and in ignorance of published guidance, the discretion appears to be a wide one such that if there is a discretion not to meet a required health need, then the individual concerned will inevitably have to meet that need him or herself from private or other resources, less that need be unmet.
The “tortfeasor” pays principle is well established from the claimant's position but what if the statutory provider seeks to rely upon it in a case like Booker, where the Claimant has decided to rely upon statutory services until a given date?
The Defendant's Arguments
Prior to settlement, the PCT threatened to withdraw services on the assumption that the Claimant would receive compensation for future care immediately. Following settlement and despite having seen a copy of the Order, the PCT confirmed it sought to withdraw services and that it would also require the Claimant to pay for some of her past care. The PCT also sought to withdraw ventilator equipment, consumables for tracheostomy care and incontinence care, leaving the Claimant with only access to GP services or emergency admissions to Hospital but little else.
The PCT set a deadline for removal of the ventilator care team on 1st September. It considered that it could walk away from its obligations on the basis that the Claimant had “elected” to look to the tortfeasor.
Its arguments can be summarised as follows:
The duties under ss 1 and 3 of the 2006 Act were target duties as opposed to an absolute enforceable duty and that the PCT could use its discretion as to what services to provide. Therefore the Judicial review should fail because there was no restriction on the factors the PCT could take into account and those factors could include its own budget and its obligation to break even; The PCT could decide that this Claimant, given her settlement, had no “reasonable requirement” for the PCT's services under s3 of the Act because she had “elected” to rely on the tortfeasor; If those arguments were incorrect, alternatively as an individual who had received compensation, the Claimant no longer had a “reasonable need” need for the PCT's services. The PCT could make that decision and it should not be susceptible to judicial review; The PCT was justified in not funding her care because she had received damages from a tortfeasor and therefore the PCT was not violating the “free at the point of delivery” principle, but reflecting the tortfeasor pays principle; The PCT drew a distinction between the Claimant and a lottery winner and accepted that a wealthy individual's means could not be taken into account in deciding whether to provide NHS services; Finally, unless the Court found the PCT's decision to withdraw unlawful or irrational, the Court would have no power to quash it.
The PCT argued that in stringent times the indemnity provided by the Insurer could be treated as an award of damages and that if it were not, the Insurer would benefit from a saving at the expense of the public purse. The PCT argues that Claimant and Insurers could reach cosy deals at the expense of the public purse and that it was desirable on policy grounds, that the PCT could refuse to provide services in circumstances such as these.
The Judgement
This was a novel case before the Courts, who had never been asked to adjudicate on this issue before. It was considered by all, that the decision would have significant ramifications if the Judicial Review failed. This is particularly so because the PCT proposed not only to withdraw care services but also ventilator equipment, consumables for tracheotomy and incontinence, and leave the Claimant with access to GP services only and dependent upon emergency admissions to hospital with little else.
It was argued over two days in the Administrative Court in Manchester and the High Court Judge made the following findings:
The PCT's decision was unlawful and was therefore quashed; Ultimately, the PCT's case was that the Claimant no longer had a reasonable requirement because she had the ability to pay for services; The safety net indemnity provided by the Insurer did not change the essence of what was being required of the Claimant from the PCT; To have regard to her ability to pay offended S2 of the 2006 Act and the Constitution which provided that “ There was nothing in the NHS National Framework or legislation which supported the argument that financial considerations of the type being considered could be taken into account; The PCT could not rely upon the “tortfeasor pays” principle because this principle was primarily concerned with whether the victim of a wrong should rely on his or her right to obtain damages from the wrong-doer or be required to use statutory services which might reduce the tortfeasor's liability; Furthermore, there was no authority supporting the PCT's attempt to itself rely upon the “tortfeasor pays” principle in an attempt to relieve itself of its statutory obligations in a case where the Claimant wished to avail herself of those services, at least until December 2011.
Ramifications
In this particular case the PCT have sought, and had refused, an application for permission to appeal. They have decided not to pursue the appeal point further. The PCT has recently agreed to purchase a ventilator for the Claimant and to refund to her the cost of salaries paid to her private carers. There are ongoing difficulties in relation to recruitment and at the time of preparing this article, the PCT have still not provided the full compliment of carers, with the result that there will inevitably be reliance upon agencies.
Whilst the PCT were approached post Judgement to consider an individual budget, they have declined to provide an individual budget to this Claimant which would have allowed her to purchase her own care. The PCT has indicated that it is going through a period of immense change and is not in a position to make what would effectively be a direct payment.
Looking ahead, we are all aware that PCT functions are, until April of this year, to be transferred to GP consortia. The Booker Judgement means that GP consortia cannot refuse to fund on the basis of the Claimant's receipt of an award of damages.