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Therapeutic Provision for Parents in Care Proceedings – who should be footing the bill?

Matthew Burman, barrister of St Albans Chambers explores the respective legal duties of the NHS and local authorities in securing the provision of psychotherapy for parents in care proceedings.

Matthew Burman
, barrister, of St Albans Chambers

It is a situation all too familiar to most family practitioners experienced in care proceedings: a local authority brings care proceedings in respect of a child due to poor parenting. The child is removed from the parents' care. The parent undergoes psychological assessment. The psychologist is of the view that, due to the parent's personality profile, the child will be at risk of suffering significant harm if returned to their care. The only way this can change is with 18 to 24 months of specialist therapy – for instance, dialectical behavioural therapy – but sadly this is outside of the child's timescales. The parent (with, no doubt, zealous assistance from their solicitor) makes enquiries as to how they can access the identified therapy. It's not available on the NHS. By the time of the final hearing, the parent has been unable to access the identified therapy and therefore the local authority rests its case on the psychologist's report. The care plan put before the court is one that advocates the permanent separation of the child from his parents. Can this be fair? What is a parent in these circumstances supposed to do? Moreover, what should the local authority have done?

In recent months, the Supreme Court and the Court of Appeal have passed comment on the expectation placed on local authorities in this very situation. Local authorities are now expected to put in place the services required to help struggling families in care proceedings. This inevitably requires cooperation from the NHS as well as other agencies. However, when it comes to the provision of psychotherapy, this need for multi-agency cooperation can be problematic. The difficulty is that, currently, patients do not have the same rights to mental health services as they do to primary health services.

This article therefore explores the respective legal duties of the NHS and local authorities in securing the provision of psychotherapy for parents in care proceedings. I will then go on to consider what (if any) powers the court has when neither of these public bodies are willing or able to foot the bill.

What responsibility does the NHS have?
Patients have a general right to expect the NHS to assess health needs in their community and commission and put in place services to meet such needs as are considered necessary 1. However, the general right of all patients to access treatment within 18 weeks of a referral does not apply to non-medical consultant-led mental health services 2. There is currently a Government initiative to equalize the waiting times for mental health services with those for primary care by March 2015, but this is still someway off. In addition, the general right of patients to make choices about the services commissioned by the NHS (and to be given information to support those choices) does not currently include mental health services 3.

Clinical commissioning groups (henceforth 'CCGs') have a legal duty to fund and provide primary health care services. However, , no such duty exists in respect of mental health services – . However, CCGs have the power to arrange for the provision of such services as they consider appropriate for the purposes of the health service that relate to securing the improvement of people's mental health 4.

CCGs have a legal duty to comply with 'technology appraisal recommendations' and 'highly specialised technology recommendations' issued by NICE. CCGs also have a duty to fund drugs and treatments that have been given this special status, when they are clinically needed 5. This includes times when the CCG is using its power to provide mental health services 6. So, for example, computer based cognitive behavioural therapy has been recommended by NICE as a treatment for depression and anxiety, and this has been the subject of a NICE technology appraisal, thereby making it binding upon the CCG to fund CBT for these conditions when it offers such a service. By contrast, dialectical behavioural therapy and schema therapy are the subject of 'clinical guidelines' – they have been recommended by NICE for the treatment of borderline personality disorders, but CCGs are under no legal duty to fund them 7.

This does not necessarily mean that patients in need of DBT or Schema Therapy are left completely without recourse. When CCGs are not obliged to fund the provision of certain drugs or treatments, they are still under a duty to have arrangements in place for making decisions and adopting policies on whether certain drugs or treatments should be made available. CCGs must publish the details of those arrangements together with the policies themselves and reasons why those funding policies have been adopted 8.

As with any public body, when CCGs make decisions as to funding, those decisions must be rational, procedurally fair and within their powers. If this is not the case, the decisions of CCGs will be open to judicial review.

The courts recognize that health authorities are under a great deal of pressure when choosing how to prioritize their funding. As put by Sir Thomas Bingham MR in R v Cambridge Health Authority ex p B [1995] 1 WLR 898:

"I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided if doctors were willing to give it, no matter how much the cost, particularly when a life is potentially at stake. It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. .... Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court."

Consequently, it is legal for health authorities to refuse to fund certain treatments due to lack of resources (except where they have been recommended by NICE under a 'technical appraisal'). However a blanket ban on funding a certain treatment has been held to be illegal and unreasonable. Health authorities must be open to the possibility of considering exceptional cases on their own merits, and to have some idea of the types of cases where funding might exceptionally be provided 9.

Cooperation between the NHS and Social Services
CCGs have a duty to cooperate with Social Services (and vice versa) in order to promote the public's health and welfare. Statute specifically includes children 10.

CCGs have a duty to comply with any request from Social Services to help them exercise any of their functions relating to the support of children and their families, if this is compatible with their own duties 11.

CCGs have a duty to make available to Social Services any services or facilities the provision of which is arranged by the CCG, the services of persons employed by the CCG, and any facilities of the CCG, so far as is reasonably necessary to enable Social Services to discharge their functions 12.

CCGs have a duty to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children 13.

Where does this leave the local authority?
The Supreme Court made it very clear in Re B 14 that a court should only endorse a care plan for adoption when every other option has been tried and tested. In the words of Baroness Hale 15 :

"It is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do. In many cases…it will be necessary to explore and attempt alternative solutions."

Lord Neuberger commented that 16:

"Before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support."

Following the Supreme Court's judgment in Re B, the Court of Appeal in Re B-S 17  has further considered what will be expected of local authorities in care cases (not just where the care plan is for adoption). Local authorities (and Children's Guardians) will be expected to adduce proper evidence, which must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option 18.

If, in the view of the court, a less interventionist order is more appropriate, it is the duty of the local authority to ensure that this option is workable. To this end, the Court of Appeal has re-emphasised the dicta of Hale LJ in Re O 19, where she said:

"It will be the duty of everyone to ensure that, in those cases where a supervision order is proportionate as a response to the risk presented, a supervision order can be made to work…The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully."

The Court of Appeal in Re B-S has added force to this view (at paragraph 29):

"It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority's thinking."

In Re W 20, in a judgment handed down by Ryder LJ as recently as 11th October 2013, the Court of Appeal has once again reiterated what is now expected of local authorities. Local authorities must give evidence as to the services that would be available to support each of the placement options available to the court 21. Ryder LJ has said that 22:

"It is…not open to a local authority within proceedings to decline to identify the practicable services that it is able to provide to make each of the range of placement options and orders work…Not all services will be practicable and it is for these reasons that the court needs to know what services are practicable in support of each of the placement options …A local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court's decision because it disagrees with the decision"

Ryder LJ expressed clear concern as to what would happen if only some Local authorities identified and procured all the services available while others failed to do so 23:

"To put it in stark terms, it cannot be right that in one local authority a child would be placed with a parent or other kinship carer with significant support to meet the risk whereas in another local authority the same child would be placed with a view to adoption in the implementation of a plan to meet the same risk. The proportionality of placement and order are for the court. The services that are available are for the authority"

In summary, taking Re B, Re B-S and Re W together, Local authorities are expected to provide the court with a proper analysis of all the options available to the court. The analysis must be based on proper evidence and weigh up the pros and cons of each alternative. Whatever order the local authority is seeking, there must be evidence that nothing short of this order will do. For each option, the local authority is under a duty to adduce evidence of all the services that would be available to make that option work. Local authorities will be expected to take heed of the court's indications as to the most proportionate order. If the court believes that a less interventionist order would suffice, the local authority must do all it can to make this work. Local authorities seeking care and placement orders simply because less interventionist orders will be more of a drain on the public purse are likely to fail. 

It would appear from the above that the Court of Appeal now expects local authorities to pull out all the stops to make the most proportionate order work. The judges appear to be saying that it is for the local authority to identify the services that are practically available, and once those services are identified, the local authority will be expected to put those services in place.

Having said this, even after the recent bout of cases from the Court of Appeal, it remains the case that the court does not specifically have power to order Social Services to fund psychotherapeutic treatment for a parent in care proceedings. Whilst a court does have power to order assessments under section 38(6) of the Children Act 1989, the main focus must be on the child. The House of Lords has previously stipulated that, where what is to be assessed is the parent's capacity to respond to psychotherapeutic treatment, this comes outside the scope of section 38(6) 24.

Whilst the court has no power to specifically order Social Services to fund an identified therapy if this falls outside the scope of section 38(6), the court does of course retain the power to adjourn proceedings to allow the local authority further time to reconsider the care plan. This situation, of a 'stand-off' between the court and the local authority, was clearly envisaged by Hale LJ in Re W and B; Re W 25. The court can adjourn proceedings and invite the local authority to reconsider its care plan on more than one occasion. The local authority is then under a duty to reconsider its care plan.

In Re W 26, Ryder LJ has given us a timely reminder of the serious implications of the court asking the local authority to reconsider its care plan if it fails to meet the court's expectations. If after repeated times the local authority has been asked to reconsider the care plan and such plan remains unchanged, this decision can ultimately be made the subject of judicial review at the High Court. Such decision could be found to be unreasonable and in contravention of the parents' Art 8 rights.

Does this mean that local authorities now have a duty to fund psychotherapy where the NHS does not?
The short answer to this is 'No…and Yes'.

Even after the recent comments of the Court of Appeal in Re B-S and Re W, it remains the case that the court has no specific power to order a local authority to fund therapy if this falls outside the scope of section 38(6) of the Children Act 1989.

However, this comes with a significant caveat. In the opinion of the writer, whilst there is no specific power for the court to order the local authority to pay for therapy, the recent case law has effectively provided for this through the backdoor. In light of Re B-S and Re W, the onus has been placed firmly on the local authority to prove that all options have been explored, before concluding with clear reasons why the order being sought is proportionate. If there is a way that the family can be kept together, everything must be done to make sure this happens. There needs to be clear evidence that the local authority has considered every possible placement option and the support services that each of these would require.

Therefore, in cases where a parent requires specialist therapy, if the NHS is not under a duty to fund it, and lawfully refuses to do so, it may well fall upon the local authority to fund it. The local authority cannot be forced outright to fund the therapy but the court is still able to invite the local authority to reconsider the care plan. The court may do this on numerous occasions. The local authority could only continue to refuse to amend the care plan if this decision is reasonable, lawful, procedurally fair and respects the parties' human rights. If the local authority's basis for refusing to change the care plan is flawed on any of these grounds, in light of Ryder LJ's remarks in Re W, there is a good chance that the matter could be referred to the High Court for judicial review.

Therefore whilst the recent case law does not go so far as to place a duty on the local authority to pay for the therapy, it must follow from the judges' remarks that the local authority must go with the order deemed to be the most proportionate. This does, to some extent, mean that the local authority's hands are tied.

1 Section 3a NHS Constitution; NHS Act 2006 ss3, 83, 99, 115 and 126.
2 Part 9, NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regs 2012
3 Part 8, NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regs 2012
4 NHS Act 2006, section 3A
5 National Institute for Health and Care Excellence (Constitution and Functions) Regs 2013, reg 7 and 8
6 ibid, reg 7(7)(b)
7 NICE Clinical Guideline 78
8 Part 7, NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regs 2012
9 R v North West Lancashire Health Authority, ex p A, D & G [2000] 1 WLR 977, as applied in R v Swindon NHS Primary Care Trust ex p Ann Marie Rogers [2006] EWCA Civ 392
10 NHS Act 2006, section 82; Children Act 2004, section 10
11 Children Act 1989, section 27
12 NHS Act 2008, section 80
13 Children Act 2004, section 11
14 [2013] UKSC 33
15 ibid, paragraph 198
16 ibid, paragraph 105
17 [2013] EWCA Civ 1146
18 ibid, paragraph 34
19 [2001] EWCA Civ 16
20 [2013] EWCA Civ 1227
21 ibid, paragraph 79
22 ibid, paragraph 81-3
23 ibid, paragraph 82
24 Re G (Interim Care Order: Residential Assessment) [2005] UKHL 68; [2006] 1 FLR 601
25 [2001] EWCA Civ 757; [2001] 2 FLR 582
26 [2013] EWCA Civ 1227, paragraphs 83-4