Harrow Clinical Commissioning Group v IPJ & Ors
In Harrow Clinical Commissioning Group v IPJ & Ors [2018] EWCOP 44, SJ Hilder considered a classic situation of "only one option" in relation to a young man of 24, AJ, who lived in his family home with his parents and sister. AJ had learning disabilities and sometimes challenging behaviour. He had been in receipt of a substantial package of CHC funded care paid directly to his parents (on a long-term interim basis since July 2014). Neither the family nor the CCG were happy with this interim arrangement. AJ's father pursued various avenues of complaint, including to the Ombudsman. The CCG commenced proceedings, and, after a protracted period of time, they reached a final hearing. The CCG proposed an extensive package of care at the family home, with (most of) the financial arrangements managed by a third-party broker. His parents did not agree the proposals and sought dismissal of the application. As SJ Hilder identified:
- [a]lthough the CCG has identified alternatives to its proposal for funding care – care at home with no support package, or residential placement - it is manifestly obvious that both of those "options" carry significant risk of failing to meet AJ's extensive needs, and neither scenario has been set out in any detailed form for the court's consideration. No party actively promotes either of them; and the history of his parents' commitment to AJ to date gives grounds for concluding that they would not be likely to conduct themselves so as to bring either of them about.
- Continuation of existing arrangements is not an option which the CCG is prepared to fund and is therefore not an option open to the court to consider. If, when he asks the court to "dismiss these proceedings," IPJ is assuming that the absence of proceedings would mean the continuation of existing arrangements, unfortunately he has not taken on board the CCG's position.
- Where [AJ's parents] have raised objections to the CCG's current proposals, I am satisfied that full and proper consideration has been given to their objections in the sense that the process of "independent investigation…coupled with negotiation … in which modifications are made to the care plan and areas of dispute are narrowed" has been fully pursued. Within these proceedings, it is apparent that IPJ and IJJ have been offered as much opportunity for discussion and contribution as in reality they were willing to take up. Appropriate efforts to facilitate concord between the parties have been made, including even line by line consideration of the PBSP [Positive Behaviour Support Plan] at the last hearing and today inviting (and being given) from the CCG explicit assurances of their intentions in respect of collaborative working with AJ's family.
- [t]aking all the circumstances of this matter into consideration, I am satisfied that the care arrangements proposed offer extensive support for AJ, calibrated to meet his needs as far as they have been ascertained after multi-disciplinary assessment, and offering scope for further provision as issues arise. Notwithstanding the dissatisfaction of AJ's parents with various aspects of the care package, the CCG's submission that it can operate the package is plausible in the light of arrangements to date. Of the narrow range of options available, it is very clearly the approach which is in the best interests of AJ.
This case therefore gives a good example of how MN works out in practice, as well as a reminder that the court will want to see that there really has been stress-testing before simply accepting that there really is only one option for it to consider.
