RACHEL GUNTER (BY HER LITIGATION FRIEND, EDWIN GUNTER) V SOUTH WESTERN STAFFORDSHIRE PRIMARY

RACHEL GUNTER (BY HER LITIGATION FRIEND, EDWIN GUNTER) v SOUTH WESTERN STAFFORDSHIRE PRIMARY CARE TRUST (2005)

[2005] EWHC 1894 (Admin)

QBD (Admin) (Collins J) 26/8/2005

HEALTH

PRIMARY CARE TRUSTS : RESIDENTIAL CARE : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE : INDEPENDENT USER TRUSTS : NATIONAL HEALTH SERVICE ACT 1977 : Art.8 EUROPEAN CONVENTION ON HUMAN RIGHTS : s.23 NATIONAL HEALTH SERVICE ACT 1977 : Sch.5A para.12 NATIONAL HEALTH SERVICE ACT 1977

A primary care trust's powers under the National Health Service Act 1977 to do what appeared necessary to achieve the provision of services could involve the use of a voluntary organisation such as an independent user trust as the supplier.

The claimant (G) applied for judicial review of the decision of the defendant primary care trust (S) that the preferred option for her care was a residential package. G had had problems since birth: having had a tumour removed which had resulted in blindness. G also suffered from diabetes insipidus and therefore had problems in maintaining fluid balance within the body, and had had several strokes. She required 24 hour nursing care. Care had been provided by one parent in the home setting, with private 24 hour nursing support. The need for a long-term solution was prompted by the parents wishing to withdraw from "hands on" care. S decided that a residential package was the preferred option. The main factors in favour of residential accommodation were cost and the view that there was less risk if a crisis developed and there was a need for immediate specialist attention. G applied for judicial review on the basis that S should provide a 24 hour, seven days a week care package which allowed her to continue to live in the family home. G submitted that an independent user trust (IUT), which had been used as a vehicle for the provision of assistance by local authorities to those with disabilities, could and should be put in place.
HELD: (1) To remove G from her home would interfere with her right to respect for her family life within the European Convention on Human Rights 1950 Art.8. (2) Parliament had deliberately given very wide powers to primary care trusts under the National Health Service Act 1977 s.23 and Sch.5A para.12 to enable them to do what in any given circumstances seemed to them necessary to achieve the provision of services. That could involve the use of a voluntary organisation such as an IUT as the supplier. Although the power existed, there were a number of practical problems which might make the suggested arrangement impossible to achieve. (3) G's case had to be reconsidered. The possibility of an IUT with the substantial saving in cost which it might produce for care at home should be explored. G and her parents could not assume that home care would necessarily result. (4) No form of mandatory order was appropriate.
Application granted.

Counsel:
For the claimant: Ian Wise
For the defendant: Roger McCarthy QC
Solicitors:
For the claimant: Irwin Mitchell
For the defendant: Mills & Reeves