NHS issues
18.10Three issues arise, in the main:
•whether the NHS has made a lawful decision not to provide a particular service;
•whether an individual is entitled to health or social care and, in particular, whether an individual is entitled to NHS continuing healthcare (which is in general free), rather than social care (which is usually chargeable); and
•on what basis, if at all, health care is to be provided to persons from abroad.
Service provision
18.11As far as concerns service provision CCG have very broad decision-making powers. In practice, in England, the courts supervise the exercise of these broad powers by requiring CCG and NHS England:
•properly to understand and have regard to the NHS Constitution (issued under Chapter 1 of the Health Act 2009), central government directions (issued under NHSA 2006 s8) and the ‘mandate’ (issued under NHSA 2006 s13A);
•properly to understand and take into account guidance;
1R v North Derbyshire HA ex p Fisher (1997–8 1 CCLR 150. •to operate rational policies and properly to understand and rationally to implement those policies.
2R v North West Lancashire HA ex p A, D and G (1999) 2 CCLR 419. In addition, NHS England and CCG are now subject to a whole raft of duties at section 13C and section 14P onwards – to promote the NHS Constitution, to discharge their functions efficiently – and so on.
The public law tools available to the courts enable them to exercise a flexible albeit limited supervisory role; limited in the sense that it is very rare indeed for the courts to hold that a decision not to fund particular treatment is irrational.
3R v Cambridgeshire DHA ex p B [1995] 1 WLR 898; for the exception that proves the rule, see R (Otley) v Barking and Dagenham NHS PCT [2007] EWHC 1927, (2007) 10 CCLR 628.By contrast, whilst the ECtHR does occasionally pry into the logical of national decision-making,
4Van Kuck v Germany (2005) 8 CCLR 121.in general, in this context, the ECHR has shown itself to be relatively blunt and ineffectual,
5The nadir probably being Pentiacova v Moldova (2005) 40 EHRR SE23.except where the real issue is not service provision but treating individuals with respect along the way.
6Glass v UK (2005) 8 CCLR 16; Tysiac v Poland (2007) 45 EHRR 42.Charging, NHS continuing healthcare and persons subject to immigration control
18.12A key feature of NHS care is that, in general, it is free at the point of delivery (see section 1(4) and Part 9 of the NHSA 2006) whereas, in general, social care is chargeable.
In particular, it is notorious that charges for care home provision can wipe out the value of the resident’s home and savings, leaving nothing to be inherited. The new deferred payment regime at para 11.27 will be of little assistance until the cost cap (currently deferred until 2020) is implemented; so it remains important for individuals that an adult entitled to NHS continuing healthcare is assessed as being such. It is also highly relevant to local authority budgets, eg in cases where they are unable to recover the cost of provision through charging. Accordingly, there is considerable, detailed machinery relating to establishing whether a person is entitled to NHS continuing healthcare (the question is, essentially, whether they have a ‘primary healthcare need’) and dispute resolution: see para
18.19 below.
Most persons from abroad are chargeable for NHS care but not all (eg EU workers are not and neither are asylum-seekers): see para
18.23.4.
The real issue, in the case of persons subject to immigration control (PSIC), is the extent to which the NHS can require payment up-front and the circumstances in which it must provide chargeable treatment in cases where, realistically, there is no chance of collecting the charge later on. Those cases are, essentially, cases where the individual concerned needs timeous treatment and for some very good reason cannot be expected to leave the UK to secure it.
7R (YA) v Secretary of State for Health [2009] EWCA Civ 225, (2009) 12 CCLR 213.