Many clinical commissioning groups (CCGs) have implemented equity and choice policies which deal with how they make commissioning decisions for patients who are eligible for NHS continuing healthcare or receive complex care packages. However 13 CCGs have recently agreed to review their policies following threatened legal action. The Equality and Human Rights Commission has announced a ‘u-turn’ after it threatened to take the CCGs to judicial review over their policies. The policies are described as ‘unlawful’ and ‘dehumanising’.

This does not mean that such policies are unlawful. Far from it. CCGs have to make decisions about allocation of scarce resources on a regular basis, whether there is a policy or not. Implemented correctly, equity and choice policies ensure that CCGs carry out commissioning decisions in a fair and consistent manner, detail the process for decision making and challenge as well as ensuring that the whole process is transparent.

The challenge often comes when the CCG is only prepared to offer a placement in a residential setting which is more cost effective than providing an extensive package of care at home. Human rights issues are of course engaged here, but the right to respect for private and family life is not absolute. As a society we must accept that if we are relying on the state to provide care for us, there is a limit to what can be provided. Equity and choice policy or not, these decisions are being made by CCGs on a daily basis.

Top tips for equity and choice policies

  • Do not fetter discretion. Blanket policies are open to challenge, there should always be flexibility in exceptional circumstances
  • Do include a good definition of what constitutes exceptional circumstances
  • Do ensure that you follow the correct process for introducing or updating your policy within your organisation
  • Do refer specifically to human rights considerations
  • Do not forget to include details of how an individual can challenge the CCG’s commissioning decision, and what process will be followed to consider the challenge, including timescales