Jill Mason explains what user independent trusts are, how they work, and the legal issues surrounding their creation
User independent trusts - bodies set up to deliver care services - have been used by local authorities to assist people with disabilities. However, they do not appear to have been used by any NHS body until 2007.In the health setting, primary care trusts have recently received requests for UITs.
They tend to come up in the following context:
- a patient requires dedicated services but wishes to retain some form of control over those services;
- the patient wants a homecare package they can oversee;
- PCTs have a responsibility to ensure services are provided by appropriate bodies in a cost-effective way.
The concept of a UIT in care cases was approved in 2003.The arrangements are:
- all payments are made to the trust company;
- it is a legal entity distinct from those who are to be cared for and their parents;
- the parents do not control the company and, since they are in a minority on the board, they cannot exercise a veto;
- the company is non-profit making and any surplus on winding up must be repaid to the council.
At Mills & Reeve, we have dealt with two UITs this year.
One related to a 21-year-old woman with diabetes insipidus who had highly complex care needs. She lacked capacity. Her family were experts in her care needs. The other related to a 36-year-old man with muscular dystrophy who had capacity. Both were cared for at home.
In the first case (which had been the subject of a judicial review in 2005) judge Collins J had noted that the legislation setting out the obligations and powers of the various NHS bodies is not a model of clarity. He said he believed Parliament had deliberately given very wide powers to PCTs and he had no doubt that this could involve the use of a voluntary organisation such as a UIT as a supplier.
He recognised that practical problems could make the suggested arrangements impossible to achieve, but said the substantial potential cost savings made it a possibility that could and should be explored.
Following a full tender exercise, the care package was awarded to the UIT.
What exactly is a UIT?
- a company registered under the companies acts 1985 and 1989 with articles of association and memorandum;
- a company limited by guarantee;
- has no share capital;
- not for profit;
- in law a "voluntary organisation".
The board members are directors. However, PCT employees cannot be directors due to conflict of interest.
It is important to note that it is the delivery of services that is being transferred and not the PCT's commissioning function. The PCT can contract with such a company formed for the purposes of supplying care.
It is a scenario that has four competing partners - the PCT, the patient, their carers, and their family members.
There are several practical issues to be considered:
- finding suitable people to run the company;
- accounting for potential patient vulnerability;
- ensuring the company has proper checks and balances in place;
- maintaining the ongoing relationship between the PCT, the patient and the company that organises the care and being aware of any conflicts of interest between, for example, the patient and the family;
- residual duties (including reviewing the contract);
- managing clinical governance.
While UITs have been helpful in the two cases described above, we believe there will be only a few cases in which the practical issues outlined above can be satisfied.
Most patients will not fit this category because they are unlikely to have relatives or other volunteers able to take on the role of running the company, employing staff and being responsible to the PCT for clinical governance.