Details

24.Jan.2011

The onus is on claimants to show they were under 18 at the time they assert a duty was owed to them as a child by a local authority, particularly where there is a large gap in the disputed age, a High Court judge has ruled.

The case of CJ, R (on the application of) v Cardiff County Council [2011] EWHC 23 centred on whether the claimant, an Afghan national born in Iran, was “a minor, aged 17, or an adult now probably 20 plus, who was at least 18 on arrival in the UK in August 2008”.

Reviewing the evidence, Mr Justice Ouseley said he had come to the conclusion that he should accept the appraisal by the social worker who had most dealings with the claimant. This suggested that CJ was now 20 plus. The claimant had given his age as 15 at his initial screening interview on 28 August 2008.

The judge said reliance on the social worker’s appraisal was supported by the general impressions of foster carers and hospital staff, “and for what little it is worth” the brief assessment carried out by the London Borough of Croydon on the same day as the screening interview (suggesting the boy was over 18).

“He could be between 18 and 22, but I found just 17 impossible to accept and untruthfully alleged,” Mr Justice Ouseley said, adding that he had doubts about documentary evidence produced by the claimant to support his claim.

Expert evidence failed to persuade the judge that documents sourced by CJ could be given the necessary credence. “I am not satisfied as to their authenticity, having heard all the evidence,” he found.

Ruling in favour of the council, Mr Justice Ouseley said he had intended not to decide the case by “what could be an unsatisfactory resort” to the burden of proof.

“But it has been quite a close decision, principally because the speed with which the three documents were sought and obtained by CJ from Iran, supports their authenticity, which in turn helps CJ's credibility and could overcome my strong reservations about him,” he said. “And I am aware of the fragility of the basis for the age assessment decisions.”

He added: “In reality, if I ask: has the council shown the claimant to be an adult aged over 18 now and on arrival, I would answer nearly but not quite. If I ask: has the claimant shown himself to be under 21 now, the answer is no and he is some way short of doing so.

The judge concluded that he had to decide who bore the burden of proof. “In my view it is for the claimant to show that he is or was under 18 at the time that he asserts a duty was owed to him as a child,” he ruled.

This was for two reasons:

• In judicial review proceedings it is for the claimant to show that the public authority has erred in its duties
• “Second, but obviously related,” it is the claimant who is asserting that the duty is owed; the authority is not asserting a power to do something. “It is not crucial but supportive nonetheless that the readier means of knowledge lies with the claimant on this issue.”

The judge said he appreciated the point made for counsel for the claimant that there may be instances under the Children Act – such as a disputed age for the purpose of preventing a parent removing a child from section 20 accommodation – where an authority might have to prove age.

“But that is consistent with the obligation being on the person who is exercising power to show his entitlement to do,” Mr Justice Ouseley said, adding that this was the basis of his decision in R (Becket) v SSHD [2008] EWHC 2002 Admin para 2. In that case, the judge ruled that the Home Secretary bore the burden of establishing that the claimant had obtained leave to remain by deception (the Khawaja issue [1984] AC 74.)

“It is not for the authority to disprove the jurisdictional fact asserted by a claimant as the basis for the duty alleged,” Mr Justice Ouseley said. “It is for the authority to prove the jurisdictional fact which it needs to assert against a disputing claimant in order to give it the power it exercises.”

The judge added that the case before him was not one where there was a grey middle range of 17-19 with the crucial age falling in the middle. “Giving the benefit of the doubt to such a claimant wisely reflects the uncertain nature of age assessment,” he said. “But that is not the issue here: it is which side of the large gap was this claimant, essentially as a matter of credibility.”

Details

20.Jan.2011

Town hall chiefs are calling for urgent clarification of the funding arrangements for measures contained in the Health and Social Care Bill, which was published yesterday.

The Local Government Association also expressed concern at the speed at which the reforms were being pushed through, warning that the new system may not be ready in 2013.

Cllr David Rogers, chairman of the LGA’s community wellbeing board, said: “The government health reforms will fundamentally alter the landscape of healthcare and pose significant challenges for delivery. We are pleased to see many of local government’s consultation proposals seem to have been included in this bill.

“However, it is uncertain whether funding will be sufficient and we seek urgent clarification. It appears councils could receive less than the new central body Public Health England, but have much more responsibility.”

Cllr Rogers said the LGA would thoroughly scrutinise the Bill to ensure it mirrors the government’s stated intention of freeing up councils and communities to decide how best to improve health and wellbeing locally, without needless interference from the centre.

“Town halls fought hard against plans to scrap separate health overview and scrutiny committees, and their arguments have hit home,” he added. “Extending formal council scrutiny to cover all NHS-funded services is a positive move, as is the decision to give health and wellbeing boards powers to make sure NHS commissioners work together with town halls to improve the health of their communities. But involvement must extend through all tiers of local government, from district to unitary.”

Cllr Rogers predicted that the key to the reform’s success would be local leadership and accountability. “Local government called for the new Health and Wellbeing Boards to be given teeth and put on a statutory footing and this appears to have happened, though we will keep pushing to make sure it becomes reality.”

But he revealed that councils were concerned by the speed at which such complex reorganisation was being pushed through. “That calls to speed up the introduction of wellbeing boards and phase in new GP consortia with pilot schemes have been acted on is reassuring,” he suggested. “And the move to make GP commissioning decisions more transparent can only be a good thing.”

The government insisted the Health and Social Care Bill would lead to “better quality care, more choice and improved outcomes for patients, as well as long-term financial savings for the NHS, which will be available for reinvestment to improve care”.

There will – for the first time – be a defined legal duty for the NHS and the whole care system to improve continuously the quality of patient care in the areas of effectiveness, safety, and patient experience.

Key proposals include:

• handing responsibility for commissioning to GP-led groups
• establishing HealthWatch and local health and wellbeing boards within local councils to increase accountability
• providing support for all trusts to become foundation trusts and establishing independent regulation
• creating Public Health England to drive improvements in public health
• streamlining arm's-length bodies in a bid to reduce bureaucracy.

The government claimed the plans would improve the NHS in a number of key ways, including by providing “real democratic legitimacy, with local councils and clinicians coming together to shape local services”.

The measures are also expected to save the NHS more than £5bn by 2014/15 and then £1.7bn every year after that. The savings are largely expected to be achieved by abolishing strategic health authorities and primary care trusts, and reducing management staff by an estimated 24,500 posts.

Health Secretary Andrew Lansley said: "Modernising the NHS is a necessity, not an option – in order to meet rising need in the future, we need to make changes. We need to take steps to improve health outcomes, bringing them up to the standards of the best international healthcare systems, and to bring down the NHS money spent on bureaucracy. This legislation will deliver changes that will improve outcomes for patients and save the NHS £1.7 bn every year – money that will be reinvested into services for patients.

"This is the start of a cultural shift to a patient-centred NHS. The proposals set out today in the Bill will strengthen the NHS for the future and make the changes that are needed for vital modernisation to put more patients and NHS staff in control."

Sir David Nicholson, NHS Chief Executive, said: "Central to the Bill is mobilising the whole of the NHS to improve outcomes for patients and we should all welcome that. The reforms present the opportunity to develop a system designed to deliver that. The values and principles of the service remain unchanged, enshrined in the NHS Constitution and in the work of our staff every day.

"It is critical for the service to keep its focus and purpose of improving quality for patients and to make the reforms a foundation for improvement. This is a major challenge when we are already planning to make £15-£20bn efficiency savings but I am confident we will be able to do this, to establish a health and care system that achieves the best outcomes for patients."

Details

17.Jan.2011

The Court of Appeal has ordered a local authority to pay compensation following a man’s unlawful detention in hospital under the Mental Health Act 1983.

In TTM v London Borough of Hackney & Ors [2011] EWCA Civ 4, the appellant M had been detained at Homerton Hospital between 30 January and 11 February 2009.

His detention followed an acceptance by East London NHS Foundation Trust, which manages the hospital, of an application for his admission under s.3 of the 1983 Act. The application had been completed by an approved mental health professional (AMHP), for whose conduct Hackney had accepted responsibility.

M challenged the lawfulness of his detention through a writ of habeas corpus against the NHS trust. The London Borough of Hackney was joined as an interested party.

On 11 February 2009 Burton J gave judgement for M and ordered his release. The judge concluded that although the AMHP honestly believed the brother (M’s nearest relative) had agreed to his sectioning, it was not reasonable for her to have believed that this was the case.

On the first day of the hearing M also issued a claim for judicial review against the local authority and the hospital trust, seeking damages for his detention or – if his claim was barred by the 1983 Act – a declaration of incompatibility with Article 5 of the European Convention on Human Rights. Burton J said the judicial review proceedings – rather than the habeas corpus proceedings – were a more suitable route for addressing the issue of damages.

Mr Justice Collins dismissed the claim for judicial review at a hearing on 11 June. The judge said M’s detention during the period up to Burton J’s order was not unlawful as a matter of domestic law and that there was no incompatibility as suggested. However, he gave leave to appeal on limited grounds.

M argued before the Court of Appeal that his admission for treatment under s. 3 and detention was unlawful on two grounds. The first was that his brother had objected to the application.

The second was that neither of the doctors who provided the medical assessment on which the application was founded had previous acquaintance with M. His counsel therefore argued that the application failed to conform with the requirements of s. 12(2) of the 1983 Act.

In the case M asserted a number of grounds for judicial review. These were claims for unlawful detention and/or trespass to the person, negligence, breach of statutory duty under the MHA and breach of duty under s. 6 of the Human Rights Act 1998 coupled with Article 5.

The Court of Appeal allowed the appeal. Giving the lead judgement, Lord Justice Toulson suggested that Collins J should have held that M was unlawfully detained both as a matter of domestic law and within Article 5 (the right to liberty).

The appeal court judge rejected Hackney and the Health Secretary’s argument that M was not unlawfully deprived of his liberty by the conduct of the AMHP since the conduct of the hospital trust was lawful. Following Sir Thomas Bingham in Re S-C (Mental Patient Habeas Corpus) [1996] QB 599, the fact that the hospital trust’s actions were lawful did not cure the underlying unlawfulness, he said.

Lord Justice Toulson ruled that M had been deprived of his liberty as a direct consequence of the AMHP’s unlawful act in applying for his admission in breach of the Act. “The only matter which protects the local authority from liability for false imprisonment is the statutory defence provided by s. 139(1),” he added. “That subsection does not stop the AMHP’s conduct from being unlawful. The application was an undoubted breach of the Act.”

Lord Justice Toulson explained what s. 139(1) does is limit the civil liability of the AMHP (and the local authority) for the AMHP’s unlawful act to cases where the act was done in bad faith or without reasonable care. “That restriction, however, is subject to the provisions of the Human Rights Act,” he added.

The judge ruled that M’s rights under Article 5 had been infringed and that he was entitled to compensation. “The correct starting point is to examine the nature of the conduct and whether it conformed with the safeguards for the patient’s liberty prescribed by Parliament, which it did not,” he said. “The next question is whether that conduct was the direct cause of the claimant’s loss of liberty, which it was.”

He said: “This is a case of detention by the state under a statutory scheme involving two agents of the state, between whom the scheme provides for an internal division of responsibility. The first agent has responsibility for ensuring that any application which it makes for a patient's detention is lawfully made. The second agent has responsibility for carrying out the detention on the application of the first agent, provided that the application appears to be in order.

“Things went wrong in the present case when the first agent made an application for M's detention which was prohibited by law. It cannot be right, because of the division of responsibility, to regard the resulting state detention as consistent with Article 5, when the fundamental cause of the detention was an application made in contravention of the Act.”

Lord Justice Toulson said he was not persuaded by Hackney’s submission that in cases of wrongful detention where everyone acted in good faith, it would be more appropriate for compensation to be paid by the party which detained M (i.e. the hospital).

The judge said: “Although the AMHP acted in good faith, the unfortunate fact remains that she acted in contravention of s. 11(4), whereas the hospital trust acted lawfully.”

He added: “S. 6(3) serves a positive purpose….it is in the public interest that a hospital trust should act promptly on receipt of an application for admission which appears to be in proper form, and that it should not think it necessary for its own legal protection to incur time and expense in checking the accuracy of the various matters which s. 6(3) entitles it to accept as correct.”

In conclusion, Lord Justice Toulson said he had “considerable” sympathy with the local authority’s position.

“The AMHP was clearly conscientious, and it may be that if she had not been mistaken in supposing that M’s brother no longer objected to the application, the ultimate result would have been the same, but by a different route,” he said.

“However, while that may affect the amount of any compensation, it cannot affect the legality of what occurred. Our system of law is rightly scrupulous to ensure that in matters affecting individual liberty the law is strictly applied. It is a hallmark of a constitutional democracy.”

The judge said he echoed the President of the Queen's Bench Division's "strong hope" that the parties could agree compensation without the need for further proceedings.

Philip Hoult

Details

05.Jan.2011

Doctors believe that local authority cuts to care services and tightened eligibility criteria are making it more difficult for older patients to leave hospital even though they are fit enough to do so, a poll conducted for The Guardian newspaper has suggested.

Half of the 502 doctors surveyed for the paper by Doctors.net.uk said so-called “bed-blocking” was worse than a year ago. A further 40% suggested the situation had not improved in that time.

Senior doctors told the paper that councils were making it harder for older people to access home help and that budget cuts had seen many authorities redefine eligibility criteria.

Dr Mark Porter, chairman of the British Medical Association's hospital consultants committee, claimed that some patients with pressing medical conditions cannot be admitted immediately because healthy patients are occupying beds.

He told The Guardian: "I would estimate that several thousand such patients are in the NHS at any one time – that's a fairly significant problem. It's very distressing for individual patients, of great concern to the medical profession and an organisational problem for the NHS.

"If you have a core of people who should be moving on but aren't, your capacity to respond to new admissions is diminished and that leads to inefficiency and increased cost. There's definitely a feeling [among doctors] that it's difficult to move patients out of hospital who are medically fit but can't be discharged because there's nowhere else to go where they'll be adequately supported."

Nigel Edwards, acting chief executive of the NHS Confederation, said the issue was something NHS hospitals had been increasingly concerned about.

He added: “There was a big improvement in this four or five years ago. But over the last few years there's been a feeling that in some places the situation has deteriorated again. People [hospital managers] who haven't had this problem before are starting to find quite large numbers of people that they are having trouble discharging because it's hard to arrange to get them back home or into a residential home.".

The Department of Health announced earlier this month that it was making an extra £162m available between now and the start of April to help patients live independently at home.

Health Secretary Andrew Lansley said: "It's really important, particularly at this time of year, that we help people to leave hospital as quickly as they can, when they are ready. The latest figures show that 2,575 beds are unavailable due to delayed transfers of care."

Details

20.Dec.2010

The government has published statutory guidance for councils and local NHS bodies on how health and social care services should implement the autism strategy Fulfilling and rewarding lives.

The National Autistic Society said the final guidance was much clearer in terms of what local authorities and health bodies are expected to do, and what individuals can expect from them.

It praised the guidance for categorically stating that local authorities and the NHS:

• should provide autism awareness training for all staff
• must provide specialist autism training for key staff, such as GPs and community care assessors
• cannot refuse a community care assessment for adults with autism based solely on IQ
• must appoint an autism lead in their area
• have to develop a clear pathway to diagnosis and assessment for adults with autism
• need to commission services based on adequate population data.

Paul Burstow, Minister for Care Services, said: “It is unacceptable that adults with autism have not been getting the full and appropriate care and support that they need from health and social care services. [This] is a vital step forward in changing that picture.

“This government has set the direction of travel and it is now important that local commissioners and providers recognise this and identify where improvements need to be made. We will continue to review progress and will also look to publish key quality outcomes to drive improvements across the public sector shortly. This will build on today’s statutory guidance for health and social care services and will address employment, housing and other public service issues for adults with autism”.

Mark Lever, chief executive of The National Autistic Society, warned that as councils set their budgets, they need to take account of the new legal duties coming into force under the Autism Act. People with autism should not be allowed to continue to fall between the gaps in services, he added.

Lever said: “Now more than ever, they and their families need support. One third of adults with autism have developed a serious mental health problem as a result of a lack of support, and families tell us that they are often left struggling to cope. We are now at a pivotal point and must push to see this strategy turned into action”.

The NAS has developed a central online resource to support health and social care professionals in the implementation of the strategy. This information can be found here. www.autism.org.uk/autismstrategy

Details

30.Nov.2010

Local authorities will be “in the driving seat” when it comes to securing improvements in public health, Health Secretary Andrew Lansley claimed today on the publication of the government’s keenly-anticipated White Paper.

Town hall chiefs said the proposals represent a great opportunity for local authorities, but warned that they do not go far enough and there was a risk of a swing towards central control.

Key proposals in Healthy Lives, Healthy People, which was published today and only applies to England, include:

• The creation of Public Health England – located within the Department of Health – as a service to give “more power to local people over their health, whilst keeping a firm national grip on crucial population-wide issues such as flu pandemics”. It will take on full responsibilities from 2012. Public Health England will combine experts from bodies such as the Health Protection Agency and the National Treatment Agency. It will also be a “knowledge bank” for evidence on behaviour change techniques and monitoring data
• Ring-fencing of public health funding from the overall NHS budget. Government estimates suggest that Public Health England will have responsibility for £4bn.
• Local health improvement functions will be transferred to local government, with the ring-fenced funding allocated to upper-tier and unitary authorities from April 2013. Local authorities will have a duty to take steps to improve the health of their population
• Local government will also be given new functions to “increase local accountability and support integration and partnership working across social care, the NHS and public health”
• The majority of public health services will be commissioned by local authorities from their ring-fenced budgets or by the NHS through Public Health England’s new public health budget
• Directors of Public Health will be employed by the relevant upper-tier or unitary local authority “and be the ambassadors of health issues for the local population”. This means in practice that they will lead discussion about how the ring-fenced money is spent and also influence investment decisions right across the local authority. The White Paper says directors will be able to “make sure that public health is always considered when local authorities, GP consortia and the NHS make decisions”. The role can be shared with other local councils if agreed locally
• The government will take forward detailed proposals for the establishment of health and wellbeing boards in every upper-tier local authority. “They will also have the flexibility to bring in the local expertise of district councils”. There will be a proposed minimum membership of elected representatives, GP consortia, Directors of Public Health, Directors of Adult Social Services, Directors of Children’s Services, local HealthWatch, and, where appropriate, the participation of the NHS Commissioning Board
• The new general power of competence will provide local authorities “with much greater freedom and flexibility to act in the interests of their communities”
• A health premium will take into account health inequalities and reward progress on specific public health outcomes. The Department of Health will consult on the detail of how the outcomes framework and the funding will work, but disadvantaged areas will receive a larger premium if they make progress
• The Department of Health will publish documents on mental health, tobacco control, obesity, sexual health, pandemic flu preparedness, health protection and emergency preparedness in 2011. The government wants to see a more coherent approach to mental health in particular, and will shortly publish a new mental health strategy
• A new “Public Health Responsibility Deal” will be driven forward by the Health Secretary with a view to making it easier for people to make healthy choices. This is likely to include “better food labelling, more information about alcohol harms, and much bigger contribution from industry around campaigns like Change4Life”.

The White Paper said: “There is huge potential to meet people’s needs more effectively and promote the best use of public resources through close working relationships between local authorities and the NHS, to further integrate health with adult social care, children’s services (including education) and wider services, including disability services, housing, and criminal justice agencies. There will be sufficient flexibility in the legislative framework for health and wellbeing boards to go beyond their minimum statutory duties to promote joining-up of a much broader range of local services for the benefit of their local populations’ health and wellbeing.”

The core elements of the new system will be set out in the forthcoming Health and Social Care Bill.

The Department of Health has also published a review of the regulation of public health professionals. It said the government’s preferred approach was to ensure “effective and independently assured voluntary regulation for unregulated public health specialists”. This will be overseen by the Council for Healthcare Regulatory Excellence, as provided for in legislation currently before Parliament.

Lansley said: “Too often in the past, public health budgets have been raided by the NHS to tackle deficits. Not any more. The money will be ringfenced to be used as it should be – for preventing ill health.

“People’s health and wellbeing will be at the heart of everything local councils do. It’s nonsense to think that health can be tackled on its own. Directors of Public Health will be able to champion local cooperation so that health issues are considered alongside housing, transport, and education.”

The Health Secretary argued that people should have services tailored for them, “at the right times in their life from the professionals closest to them”.

He added: “With local authorities in the driving seat, supported by the latest evidence on behaviour change from Public Health England, we will start seeing significant improvements in the nation’s health.”

Responding to the White Paper, Cllr David Rogers, chairman of the Local Government Association’s community wellbeing board, said: “Public health has been the core business of local government since its foundation. Many councils already put a lot of effort, resources and imagination into improving the health and happiness of their communities.

“We believe public health should be at the heart of all we do, so the government’s decision to give town halls a wider role presents us with a great opportunity to build on the good work which already exists across the country.”

He added: “This White Paper states it is time to free up local government and local communities to decide how best to improve the health and wellbeing of their citizens, but it doesn’t go far enough and leaves many questions unanswered. Behind the language of greater freedom lies a swing to central control which risks hampering town hall efforts to boost health.  

“With Public Health England employing the majority of the public health workforce, how can we make sure local and national needs work hand in hand? How can we answer to government when the people leading on public health don’t answer to us? Public Health Directors must be accountable to councils.”

Cllr Rogers praised the government for recognising that councils will need more money to perform the extra public health duties contained in the White Paper. However, he added: “Not only should we make sure they're given enough to do the job, they also need the financial freedom to effectively take on the challenges of improving their residents’ health. How the public health ring-fence will work must be made clear.”

The Chief Medical Officer (Interim), Professor Dame Sally Davies, said: “We need a strong and protected public health system to tackle our public health problems, and protect the public. So I welcome this Public Health White Paper which sets out how a new core public health service, Public Health England, will integrate public health expertise, providing national support and advice, for local delivery.

“By joining up the local work done by the NHS, social care, housing, environmental health, transport and leisure services and focusing on public health at a local level, this paper lays out a strategy to improve the health and wellbeing of the nation, and addresses the issues of health inequalities.”

A copy of the White Paper can be downloaded here. The deadline for responses is 8 March 2011.