Commentary on Sections Part 2 .Health Care Section 26 – Provision of health services by local authorities
101.This section makes amendments to section 47 of the 2014 Act. These address an unintended consequence arising from the drafting of the 2014 Act, in order to incorporate the full statutory test which is intended to determine the limits of the powers of a local authority to provide health care services.
102.Section 47 of the 2014 Act establishes the limit of health services that a local authority may lawfully be expected to provide to meet health care needs. Subsections (1) and (2) contain the exceptions for the provision of health services by local authorities.
103.The “quantity and quality” test, developed by the Court of Appeal as a result of the Coughlan case (R. v. North and East Devon Health Authority, ex parte Coughlan [1999 EWCA civ 1871], and sometimes referred to as the “Coughlan test”, determines the limit of the powers of a local authority to provide health care services. It was intended that the provision made by section 47 of the 2014 Act would follow the Law Commission’s recommendations in its report into Adult Social Care (The Law Commission (LAW COM No. 326) Adult Social Care), including that the Coughlan test should be codified in statute. However, the Social Services and Well-being (Wales) Bill as introduced contained the first limb only of the Coughlan test which is now set out in section 47 of the 2014 Act.
104.The amendments made by section 26 therefore insert the second limb of the Coughlan test into section 47(1) and (2) of the 2014 Act, in order to give effect to the original policy intent.