Successive legislative developments (particularly NHS act 2006 and Care Act 2014) have greatly increased both the motivation for health and social care to co-operate and provided the powers to make co-operation possible. But understanding of the legal basis of such co-operation and the resulting implications remains poor.
The partnership flexibilities in the NHS Act 2006 made it much easier to achieve joint working and these have been added to by the broad delegation powers under s79 Care Act but there are still legal pitfalls for the unwary.
If an authority is about to hand over performance of some or most of its functions to another agency, there surely needs to be confidence about the ability and willingness of that other agency to discharge the functions without a breach of human rights. In law, he who delegates a provision function to another agency, remains liable to the intended beneficiary of that function – the service user – for proper discharge of that function.
Knowledge of how the Human Rights Act affects each agency involved in the health/social services interface would therefore seem to be a pre-requisite of sensible partnership arrangements.
Even contracting and grant-giving functions will attract challenge on human rights grounds, and thus awareness is required for tendering, scrutiny, setting conditions, or service level specifications, performance monitoring etc.
Joint working in its wider interpretation also means working with the private and voluntary sector.
Even contracting and grant-giving functions will attract challenge on human rights grounds, and thus awareness is required for tendering, scrutiny, setting conditions, or service level specifications, performance monitoring etc.
In a grant-aiding situation, the entity which will be challenged under the Act (eg. for unjustifiable discrimination against particular clients) will be the local authority, because it is the public authority. Equally, where services are formally commissioned from the private sector, a failure of the specification to ensure that the provider will be abiding by human rights is most likely to rebound on the authority, rather than the private sector provider.
Our view, supported thus far by the Leonard Cheshire and Servite Houses cases, is that only where the statute governing the service in question stipulates that the contractor shall be the agent of the commissioning authority, or the discharge of an entire function had been specifically delegated to the private sector under the Deregulation and Contracting Out legislation, would the private sector organisation be likely to be first in line for challenge as a hybrid ‘public’ authority…