Gunter v South Western Staffordshire Primary Care Trust

When a public authority decides whether severely disabled person should receive care at home or in residential accommodation, it must give substantial weight to the person’s Article 8 family life. Cost is a relevant consideration, but financial constraints do not justify care which fails properly to meet the person’s needs. A decision to remove a person from the family home requires clear and proportionate justification.

Primary Care Trusts possess broad powers to arrange services and enter contracts. Those powers may permit the use of a specially established independent user trust or other voluntary organisation, subject to proper safeguards concerning registration, financial accountability, staffing, standards and clinical governance.

Rachel Gunter suffered severe brain injury, blindness and diabetes insipidus following surgery for a brain tumour. She required one-to-one qualified nursing care continuously, with skilled intervention potentially needed within five minutes.

The defendant Primary Care Trust preferred residential accommodation on grounds including cost, clinical risk and social interaction. Rachel and her parents sought a long-term package enabling her to remain at home and proposed an independent user trust to provide the care. The claim followed the Trust’s refusal to alter its decision.

The issues were whether the proposed arrangement was within the Trust’s powers, how Article 8 affected the care decision, and what relief the Administrative Court should grant.

1. Article 8 and the care decision. Removing a seriously disabled person from the family home interferes with the right to respect for family life. The interference must therefore be justified as proportionate. Cost may properly be considered, but evidence of benefits obtained by diverting savings from a less costly package is not sufficient. The person’s welfare, quality of life, expressed wishes and the benefits of the existing family environment required substantial weight. The evidence suggested that removal from the home required clear justification.
2. Judicial review. Judicial review was an unsatisfactory mechanism for resolving disputed factual judgments about care packages. Its principal value was to identify failures to consider material matters and to require reconsideration on correct legal principles. A mandatory order was inappropriate.
3. Statutory powers. The statutory framework imposed a duty to provide necessary medical and nursing services and facilities for persons suffering from illness. Section 23 of the National Health Service Act 1977 enabled arrangements with another person or body to provide services. Paragraph 12 of Schedule 5A gave a Primary Care Trust power to do anything necessary or expedient in connection with its functions, including entering contracts.
4. Independent user trust. Following the reasoning in R(A & B) v East Sussex CC and another (No 1) [2003] CCLR 177, an independent user trust could be a voluntary organisation. The Trust was not restricted to the local-authority power in section 30(1) of the National Assistance Act 1948. Parliament had conferred sufficiently wide powers to allow a Primary Care Trust to use such an organisation, although practical requirements concerning registration, financial accountability, staffing, minimum standards and clinical governance had to be addressed.
5. The proposed trust arrangement had to be explored, but the claimant could not assume that home care would follow. The risks, cost savings and feasibility of the arrangement remained matters for the Trust as decision-maker. The judgment indicated that no mandatory relief was appropriate; the parties were to address the form of any declaration.