NHS organisations facing court action over unlawful policies

By agency reporter
March 20, 2018

NHS organisations are facing legal action over discriminatory Continuing Healthcare policies, the Equality and Human Rights Commission has warned.

The Commission has taken its first steps in judicial review proceeding by issuing legal letters to 13 Clinical Commissioning Groups (CCGs).This follows an initial warning issued by the Commission, which highlighted concerns about NHS Continuing Healthcare (NHS CHC) policies being unlawful and breaching the human rights of patients.

If the CCGs fail to provide evidence to demonstrate that their policies are lawful, or do not take steps to review them, they will be taken to court.

The Commission has raised significant concerns about blanket NHS CHC policies having arbitrary caps on funding and failing to consider the specific needs of individual patients, such as living location and family life.

This is a serious breach of the Human Rights Act, the Public Sector Equality Duty and the Department of Health and Social Care’s own NHS CHC framework.

Rebecca Hilsenrath, Chief Executive at the Equality and Human Rights Commission, said, "It is utterly unacceptable that anyone should be forced into residential care when they are healthy enough to live independently and with their families. And it doesn’t make sense for individuals or communities.

"A 'one-size fits all' approach will never properly address every single individual’s healthcare needs, and NHS CHC policies are no different. This is another example of individuals being disabled by society, and prevented from living as full and independent lives as possible, as is their right. We will use our powers to ensure that the NHS thinks about this again."

The Commission first aired concerns over discriminatory NHS CHC policies in October 2017, when it wrote to 43 CCGs demanding more information on their approach.

Following this warning, almost a quarter of those contacted are now reviewing their policies and the Commission will be writing to the others whose policies are of less concern.

It will use its formal legal powers to initiate judicial review proceedings against 13, who it determines have not considered their human rights and equality responsibilities in the way they operate their policies.

NHS CHC provide funding for care outside of hospital, either in a care home, nursing home, hospice or a person’s own home, funded by the NHS to meet physical, mental health and associated social care needs. 

The letters were sent on 19 March 2018, and the CCGs have 14 working days to respond, after which decisions about starting court proceedings will be made.

The Commission has written to the following 13 CCGs across England:

  • Brent
  • Coventry and Rugby
  • Dudley
  • East and North Hertfordshire
  • Eastern Cheshire
  • Harrow
  • Hillingdon
  • South Cheshire
  • Vale Royal
  • West Cheshire
  • Warwickshire North
  • Lincolnshire West
  • Redditch and Bromsgrove

* EHRC https://www.equalityhumanrights.com/en

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