JF, R (on the application of) v NHS Sheffield Clinical Commissioning Group

A clinical commissioning group’s duty under section 3 of the National Health Service Act 2006 is to arrange necessary services, not to provide them personally or micro-manage an acute hospital’s treatment of an individual patient. Where the hospital has the expertise and capacity to meet the patient’s reasonable requirements, it must assess and meet those needs. A community continuing healthcare package does not automatically determine care required during an acute admission. Additional services must be arranged if the provider lacks the necessary expertise or capacity.

The claimant, who received NHS continuing healthcare in the community, challenged the defendant CCG’s decision not routinely to provide her usual 24-hour one-to-one package during hospital admissions. She alleged irrationality, breach of section 3 of the National Health Service Act 2006, and breach of positive operational duties under Articles 2 and 3.

The hospital accepted responsibility for assessing her needs during admission and subsequently decided to provide continuous one-to-one supervision. The issues were whether the CCG had asked the correct question, whether section 3 required additional commissioning, and whether the claim remained justiciable or had become academic.

1. The claim was dismissed. The CCG had asked the correct question: whether the claimant’s needs in hospital could adequately be met by the acute trust or whether additional continuing healthcare-funded care was required. Its decision was rational and sufficiently informed.
2. Section 3 of the National Health Service Act 2006 requires a CCG to arrange services to the extent it considers necessary to meet reasonable requirements. It is not an absolute duty to provide a particular level of care, and the CCG may have regard to available resources. It does not create an individually enforceable entitlement to a particular level of NHS care.
3. The claimant’s community assessment did not establish that identical provision was required in hospital. Hospital admission created a different clinical setting in which the hospital was best placed to assess needs and exercise clinical judgment. The CCG was not required to second-guess or direct that judgment.
4. The hospital’s contractual obligations and private law duty of care required it to assess and meet the claimant’s needs. If it lacked expertise or capacity, it had to notify the CCG and seek further resources. If the CCG became aware that the provider could not meet the claimant’s reasonable requirements, its section 3 duty would require further arrangements. That proviso did not apply on the evidence.
5. The Articles 2 and 3 ground failed because there was no adequate medical evidence of the requisite risk and no operational duty was established. Any inadequacy in hospital care could be pursued through the hospital’s complaints procedure or, if sufficiently serious, private law remedies. The claim was also academic because the hospital had decided to provide the disputed supervision. The court would in any event have declined discretionary relief because adequate alternative remedies existed and the claim was academic.

First-instance judicial review proceedings. No lower-court decision is stated in the judgment.