A case that was concluded in the Bath County Court, Richard Jackman v Wiltshire CCG, contains a significant lesson for all NHS commissioners and providers who are concerned with delivering NHS services to patients who have learning disabilities (or any other psychological disability) to treat a physical illness or condition. Any failure by the NHS to make reasonable adjustments in the way such services are delivered could be unlawful and lead to NHS commissioners and providers being exposed to significant damages claims.
The details of the Jackman case
Mr Jackman is in his 20s and suffers from a psychological disability, namely Asperger’s Syndrome (a form of autism). However he also suffered from a separate physical disability, namely panhypopituitarism. This left him at risk of an adrenal crisis at any time. The standard emergency treatment for panhypopituitarism patients is to have an emergency injection of 100mg of hydrocortisone. Patients are provided with a kit to make up the injection and then self-inject. An untreated adrenal crisis can lead to death.
However Mr Jackman’s psychological disability meant that he may not recognise the signs of an impending adrenal failure and so he would probably only appreciate he was facing a crisis at a late stage. He also lacked the fine motor skills needed to make up the injection, particularly if he was going into a crisis.
Mr Jackman’s parents were his de facto carers. They had been trained by the NHS to inject him and held the injection “kit”. He lived under their close supervision, had done so for many years. However, as a young man in his twenties, both they and he were concerned that he should not have to live continually in the shadow of his parents. The CCG offered carer support for Mr Jackman but steadfastly refused to provide him with a support worker who could provide him with emergency injections. They cited various objections including “regulatory concerns”. The CCG’s position was that, if he needed an emergency injection, the NHS emergency services should be called. The problem was that all of the expert advice was that, by the time the ambulance arrived and assessed the situation, it may well be too late. The CCG decided Mr Jackman was not eligible for NHS Continuing Healthcare. That decision was overturned on appeal by NHS England but reinstated on review by the CCG.
Mr Jackman’s lawyers did not challenge the CCG decision by way of Judicial Review but, in what may have been a novel approach, sued the CCG for breach of its duty under the Equality Act 2010 to make “reasonable adjustments” in the way the NHS provided services to Mr Jackman to treat his panhypopituitarism. The CCG strongly defended the case all the way up to day 2 of the trial but then conceded. It was clear that the CCG had considerable difficulty in accepting that the legal duty to make “reasonable adjustments” could have any real impact on the way the NHS was required to provide services to Mr Jackman.
However, under the forensic microscope of a trial, all of the legal objections fell away and the CCG was left with the claim that a carer who could seek help from the emergency services was a reasonable adjustment. However, on the facts, that plainly did not work as the experts agreed it was not a safe system of providing support.
In part, the Claimant’s lawyers sued under the Equality Act 2010 because, as a matter of law, the duty to make “reasonable adjustments” is critically different from any other commissioning decision. The difference is that a decision as to what amounts to a “reasonable adjustment” is a decision for the court, not a decision for the NHS commissioner (and thus can only be overturned on a rationality challenge). This means the Judge, not the CCG, is the decision maker as to what is and is not a reasonable adjustment.
The case was finally settled when it became plain that the CCG would not be able to call evidence to attempt to defend its previous decisions. Under that settlement the CCG committed itself to providing Richard with an injecting carer for the hours of the week when his parents could not provide support. The CCG paid Mr Jackman substantial damages and also paid all of the Claimant’s costs. That probably leaves the CCG with an overall bill of more than £300,000; all for failing properly to understand how a Judge was likely to approach a decision as to what constitutes a “reasonable adjustment” for a patient such as Mr Jackman.
The wider implications
Patients with learning difficulties who also have physical illnesses present a particular problem for the NHS and social services. Delivering physical health services to patients who have communication difficulties or whose psychological disabilities make it difficult to engage with medical staff make it far harder to treat their physical illnesses. However the facts of Jackman v Wiltshire CCG should be a wake-up call for all NHS bodies who provide services to treat the physical health problems for patients with psychological disabilities. The legal duty to make “reasonable adjustments” is engaged in such cases and thus the way that the NHS delivers services must “provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large”: EHRC Code of Practice.
It is no defence for an NHS commissioner or provider to fail to recognise that the duty is engaged. Further, it is a pro-active duty and so it is no defence to say that the disabled person and those supporting him or her did not ask for changes in the way that NHS services were being delivered to treat the physical illness. Fulfilment of the duty lies with the service NHS body responsible for providing services to the patient – both the commissioner and the provider.
Irwin Mitchell’s Bristol office acted for Mr Jackman. They instructed David Lock QC of Landmark Chambers.