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R V HAMMERSMITH HOSPITALS NHS TRUST EX PARTE REFFELL [2000] EWHC Admin 363 (28th June, 2000)
Case No: CO/1037/2000
IN THE SUPREME COURT OF JUDICATURE
(QUEEN'S BENCH DIVISION)
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
28th June 2000
B e f o r e :
LORD JUSTICE KENNEDY
and
MR JUSTICE JACKSON
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R
V HAMMERSMITH HOSPITALS NHS TRUST
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Respondent
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EX
PARTE REFFELL
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Applicant
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Richard Gordon QC (instructed by Leigh, Day & Co for the
applicant)
Philip Havers QC (instructed by Capsticks for the respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE KENNEDY:
Reasons for judgment
1. This matter came before us as an application for permission to apply
for judicial review which was adjourned to this court by Hooper J on 22nd March
2000 with the intention that the court should proceed to hear the substantive
application if permission be granted. We granted permission, and at the end of
the hearing on 19th June 2000 we indicated that we were not prepared to grant
the relief sought. We now give our reasons for that decision.
2. Facts
The background is simple and sad. The applicant is 23 years of age and he is
a Nigerian. In 1999 he needed a kidney transplant, and his brother was
prepared to act as donor but the operation was not then available in Nigeria.
So Statoil, a Norwegian oil company by which the applicant's father was
employed, agreed to pay the estimated costs of £35,000 of having the
operation carried out at the Hammersmith Hospital in London. The applicant
then travelled to London with his brother and their mother. The applicant had
been on dialysis in Nigeria since October 1998, and when Dr Warrens, a
consultant physician at the Hammersmith Hospital, saw the applicant at that
hospital on 18th August 1999 the applicant was assessed as unfit to undergo the
transplant operation which at that stage was planned for 14th September 1999.
He suffered from recurrent fevers, probably caused initially by tuberculosis
and investigations revealed a lesion of his brain stem and adjacent areas which
could have been caused in a number of ways, such as abnormal blood flow, a
brain tumour, or an infection such as tuberculosis. Because of the risks of
attempting a biopsy of the lesion it was decided to defer the transplant
operation for three months, and to then carry out a further scan.
During the autumn of 1999 there were several episodes of febrile illness which
were successfully treated with antibiotics, but the appearances were
sufficiently suggestive of tuberculosis to warrant a 9 month course of
anti-tuberculosis treatment. That meant the operation could not be
contemplated until the course of treatment was over, and, because of
non-compliance, that course had to be re-started in February 2000.
Meanwhile, in January 2000 another, CT scan was performed, and the brain stem
lesion appeared to have increased. Because of the lack of progress it was then
considered appropriate to proceed with a brain biopsy despite the risks, and
that is still the medical view. In February 2000 the applicant was observed to
have inguinal lymphadenopathy, which makes it desirable for him to undergo a
lymph node biopsy in advance of any brain biopsy. A lymph node biopsy could
make a brain biopsy unnecessary, and could disclose a cancer which could delay
transplantation possibly indefinitely.
Even if a brain biopsy is undertaken the result may be unhelpful or equivocal,
and until the brain stem and other problems have been diagnosed and
successfully treated there can be no transplant. One reason is that
transplants involve immuno-supression, and if the applicant then developed a
febrile illness he could well die. Even if all goes well it is clear from Dr
Warrens supplementary statement of 8th June 2000 that no transplant can be
considered before the summer of 2001, and since January 2000 the applicant has
been urged by Dr Warrens and others, including Dr Bamgboye, his referring
physician in Nigeria, to return there for treatment, but he is reluctant to do
so.
Since his arrival in London the applicant has continued to receive dialysis.
His original leave to enter for 6 months was extended in February 2000 until
August 2000. The funds made available by Statoil covered the costs of dialysis
and other treatment up to April 2000, but there is now a substantial deficit.
Statoil is not prepared to make further funds available here, although it will
cover costs in Nigeria, and the ongoing costs are such that the applicant and
his family plainly cannot afford to pay. In March 2000 the applicant was told
by the respondents that he could only continue to receive treatment if he paid
in advance or produced an acceptable guarantee that the costs of treatment
would be met, and that is what has provoked this application for judicial
review. In fact, in accordance with an undertaking given to Hooper J the
respondents have continued to provide dialysis pending the hearing of this
application, and have always made it clear that they will provide such
treatment as is necessary to stabilise the applicant for travel back to
Nigeria.
3. Contentions
For the applicant Mr Gordon QC contends that -
(1) whatever may have been the status of the applicant originally he is no
longer properly to be regarded as an "overseas visitor" for the purposes of the
relevant regulations, and so he is entitled to be treated by the NHS, and in
particular to go on receiving dialysis, free of charge.
(2) Alternatively, if he is an overseas visitor being provided with services
forming part of the health service, then it is accepted that the respondent
Trust must make and recover charges for those services but, Mr Gordon submits,
the Trust has no right to require payment in advance, or the furnishing of an
acceptable guarantee before the services are delivered.
(3) Even if, which Mr Gordon does not accept, the Trust has a discretion to
proceed in that way, it has failed to consider properly how that discretion
should be exercised, and-
(4) in the alternative, the decision to proceed in that way is irrational,
having regard to the sums involved and the applicant's express desire not to
return to Nigeria, a desire which, we are told, has now found expression in a
further application for leave to remain in the United Kingdom.
For the respondents, Mr Havers QC, contends that -
(1) the applicant is and always has been an overseas visitor, and only
relatively recently, after the commencement of these proceedings, has anyone
suggested otherwise.
(2) Although the Trust is not obliged to seek payment in advance or a guarantee
of payment, it has a discretion to do so which has been properly exercised, and
accordingly there is no reason for this court to interfere.
4. Overseas visitor?
The NHS exists for the benefit of the people of England and Wales (See section
1 of the NHS Act 1977), and the services which the statute requires the
Secretary of State to provide can be made available to patients who are
prepared to pay, including those who normally are resident overseas.
Regulation 2 of the NHS (Charges to Overseas Visitors) Regulations 1989, made
pursuant to section 121 of the 1977 Act, makes it clear that where a Trust
provides "an overseas visitor" with services forming part of the Health Service
the Trust "shall make and recover" charges for the provision of those services.
The term "overseas visitor" is defined in regulation 1(2) as "a person not
ordinarily resident in the United Kingdom". In R v Barnet LBC ex parte
Shah [1983] 2 AC 309 the House of Lords considered how the words
"ordinarily resident" should be interpreted in relation to students, who having
entered the United Kingdom and completed one course of study, were seeking
local authority funding for further study. At 343H Lord Scarman said that -
"`Ordinarily resident' refers to a man's abode in a particular place or country
which he has adopted voluntarily and for settled purposes as apart of the
regular order of his life for the time being, whether of short or long
duration."
I have no doubt that someone who comes to this country for medical treatment
or for the good of his health may become or propose to become ordinarily
resident, just as that possibility was available to the students in
Shah. But, bearing in mind that this challenge relates to a decision
made in March 2000, it seems to me that the evidence, to which I have briefly
referred, was overwhelmingly in favour of the conclusion that the applicant
was, and had always been, from the moment of his arrival in the United Kingdom,
an overseas visitor for the purpose of the 1989 Regulations.
Our attention has been invited to paragraph 6 of the May 1999 edition of the
NHS Patients Guide for Overseas Visitors, part of which reads -
"A person living here for a settled purpose for not less than 6 months will be
accepted as ordinarily resident and therefore not liable to charges under the
Regulations."
Mr Gordon submits that the applicant has been living here since August 1999
for the settled purpose of obtaining medical treatment culminating in a
transplant. Similarly the NHS Manual of Guidance of Treatment of Overseas
Visitors says in paragraph 1.2 -
"A person should be accepted as `ordinarily resident' if he is lawfully living
in the United Kingdom voluntarily and for settled purposes as part of the
regular order of his life for the time being. He must have an identifiable
purpose for his residence here and that purpose must have a sufficient degree
of continuity to be properly described as `settled'. This will depend upon the
facts of each individual case but we advise that a person who is intending to
stay here for less than six months would not usually be regarded as ordinarily
resident and eligible for free treatment ........"
Neither of those documents seems to me to be of any real assistance in the
context of this case. Their object is to assist patients and staff to decide
who is entitled to be treated free of charge because they are ordinarily
resident. A person who comes here and is admitted to the United Kingdom for
the purpose of obtaining highly specialised treatment for which he proposes to
and does in fact pay is plainly not, as it seems to me, the sort of person whom
those who drafted the Guide and the Guidance had in mind.
5. Right to require payment in advance
Mr Gordon accepts that if, as I would hold, the Trust in March 2000 was right
to conclude that the applicant was an overseas visitor then it was required by
Regulation 2 of the 1989 Regulations to "make and recover" charges for the
services which it provided. It had no discretion not to charge, and its
obligation was not only to charge but also to recover.
I accept, as Mr Gordon points out, that the 1977 Act in section 1(2) starts
from the position that services provided in accordance with the Act shall be
provided free of charge.
"The services so provided shall be free of charge except in so far as the
making and recovery of charges is expressly provided for by or under any
enactment, whenever passed"
Mr Gordon's basic proposition, as I understand it, really amounts to this -
that since no enactment expressly authorises the Trust to seek payment or a
guarantee in advance of treatment it cannot do so. Even if it knows that an
overseas visitor applying for treatment will not be able to pay it must provide
the treatment. In my judgment that approach fails to give any sufficient
weight either to the structure of the legislation as a whole, or to the wording
of the relevant section and the relevant regulation.
As to the structure of the legislation as a whole, it is to my mind clear, as
Mr Havers submits, that, with the exception of emergency treatment and other
special cases (such as where visitors need to be treated in order to protect
the resident population) services are made available to overseas visitors as a
commercial operation, not as a humanitarian gesture. That is clear, for
example, from section 65 of the Act and from Regulation 3(a) of the 1989
Regulations, which exempts an overseas visitor from charges at a hospital
Accident and Emergency or Casualty Department, but requires him to pay as soon
as he is accepted as an in-patient, and however acute the condition or
deserving the patient the Trust has no discretion to waive that obligation to
pay. This commercial approach is, of course, tempered to some extent in
operation so as not to oppress and so as to enable medical and nursing staff to
comply with what they would regard as their professional obligations. Thus in
paragraph 4 of the Manual of Guidance it is said that where enquiries are being
made as to whether a patient should be charged, nothing should be done which
might involve the harassment of a seriously ill patient, and in paragraph 4.3
it is said that principles adopted must accord with normal principles of
patient care. No doubt, but that does not detract from the underlying
commercial nature of the arrangement, and in reality it is difficult to see how
it could be otherwise. The NHS has enough trouble trying to raise funds to
treat those whom it must treat, without volunteering to treat others as well at
a loss.
Turning to the wording of Regulation 2 of the 1989 Regulations I note the
tenses of the verbs used - where a Trust "provides" services, having made
appropriate enquiries as to chargeability it "shall make and recover" charges.
Mr Gordon relies on the tenses to support his submission that the right to
charge follows but cannot precede the provision of services. He accepts that
as suggested in paragraph 5.4 of the Manual of Guidance it is good practice to
seek a deposit equivalent to the full cost of the hospital charges which will
be payable, and that patients who cannot pay in advance should be asked to give
an undertaking to pay (which the applicant's mother has given) but if neither
payment in advance nor an acceptable guarantee can be produced then, as I
understand Mr Gordon's submission, his case is that necessary but non-emergency
treatment must be given to overseas visitors even in circumstances where the
Trust concerned knows that the patient will not be able to pay. I disagree.
To my mind when Parliament imposed on the Trust the express obligation to
recover charges it must be taken to have given the Trust the ordinary means to
discharge that obligation including the right to require payment in advance or
an acceptable guarantee of payment from those who seem unlikely to be able to
pay.
6. Discretion not to seek payment in advance.
Mr Gordon submits that even if payment or an acceptable guarantee can be
required there must be a discretion not to require it, and that the existence
of that discretion was not recognised nor was it properly exercised in this
case. He invites our attention in particular to the Trust's letter of the 18th
May 2000, written about two months after the decision challenged in these
proceedings. In that letter the writer says -
"We consider, and have been so advised, that we have no discretion but must
charge for dialysis to be provided to overseas visitors. We are entitled to
require either prior payment or a suitable guarantee of payment in advance of
providing treatment."
I can find nothing in that letter or elsewhere to suggest that the Trust did
not recognise that it had the discretion not to require a guarantee or payment
in advance, a discretion which Mr Havers concedes does exist.
As to the exercise of the discretion Mr Gordon points to Regulation 4(b) of
the 1989 Regulations which provides that no charge shall be made for services
provided to an overseas visitor -
"Who has resided in the United Kingdom for the period of not less than one year
immediately preceding the time when the services are provided, whether or not
immediately prior to the completion of one year's residence as aforesaid,
charges under these Regulations may have been made in respect of services
provided as part of the same course of treatment."
That, it is agreed, means that as from mid August 2000, if the applicant is
still in the United Kingdom, no charge can be made and, Mr Gordon submits, the
sum at issue is therefore relatively small - the cost of routine dialysis
between March and August 2000, reduced to the extent that Statoil has paid. To
that there can be a number of responses - first, the sum is not trifling. The
average weekly cost of dialysis is £285. Secondly, that makes no
allowance for any other form of treatment the applicant may have required or
may yet require. Thirdly, the decision under review was taken at a time, when
it was not known, and it is still not known whether the applicant will be in
the United Kingdom, and if so whether he will be entitled to be in the United
Kingdom, in August 2000. Fourthly, the treatment the applicant now requires is
available in Nigeria where Dr Bamgboye is ready to welcome him back, and there
is no immediate prospect of the applicant being fit to undergo transplant
surgery, either here or elsewhere. Of course the applicant is entitled to his
views as to the quality of the care available in Nigeria, but those views
cannot render unreasonable the Trust's decision not to go on providing routine
medical care at a time when all the indications are that if proper charges are
raised in respect of that care they will never be paid. Fifthly, the Trust has
to try to be even-handed in its treatment of patients. If it does not require
payment in advance of the applicant, or an effective guarantee, it in effect
waives payment in his case. He has no discernible means to pay in the United
Kingdom, so the Trust can derive no real benefit from section 122(1) of the
1977 Act which enables charges to be recovered summarily as a civil debt. And
if he eventually returns to Nigeria without paying all of the charges which may
have been raised there would obviously be serious problems about attempting to
recover. Accordingly in my judgment the decision of the Trust to require
payment in advance cannot be regarded as irrational. The Trust was entitled to
exercise its discretion as it did, and the applicant having failed to establish
any ground for relief his application for judicial review must fail.
Mr Justice Jackson: I agree.
- - - - - - - - - - -
LORD JUSTICE KENNEDY: At the conclusion of the hearing in this matter, we
indicated that the application for judicial review was to fail. We have now
handed down our reasons for that decision.
Mr Havers, we are indebted to you for the two small corrections. They
will appear in the final edition.
MR HAVERS: I know the copies of the draft judgment were handed out to the
press. Would it be helpful if I indicated briefly what the corrections
were?
LORD JUSTICE KENNEDY: Yes. Top of page 3, line 2, "could" should read
"should". Top of page 6, main paragraph 6, top line, between "even" and
"payment" there should be an "if". Thank you very much.
MR HAVERS: So far as costs are concerned, I do seek an order that the
Applicant pay the Respondents' costs not to be enforced without the permission
of the court. So as not to trouble your Lordships with any summary assessment
of the Respondents' costs, can I suggest that your Lordships add to that order:
"To be assessed summarily if and when permission to enforce is sought"?
LORD JUSTICE KENNEDY: Yes. Mr Gordon?
MR GORDON: There is no opposition to that. Having said that, I would submit
that it is a very, very academic order and the court may feel that, in those
particular circumstances, no order would be preferable.
LORD JUSTICE KENNEDY: I think, on the whole, that subject to what Jackson J
may think, Mr Havers is entitled to his order. It does not do you any damage
at this stage but he is entitled to protect the position.
MR JUSTICE JACKSON: I agree.
LORD JUSTICE KENNEDY: There will be an order accordingly, i.e. the Respondents
to have their costs but that order not to be enforced without leave of the
court. The costs to be assessed summarily if and when permission is
granted.
MR GORDON: My Lord, I have an application for permission to appeal. It is
against the background of the general test in the practice direction, in
paragraph 2.8. The general rule is that permission will be given unless an
appeal would have no real prospect of success.
What we say particularly is that it is issue 5 at paragraph 5 in the
judgment. I appreciate that the court has ruled against on us on the question
of construction. It is actually rather an important point for the NHS,
particularly in the light of the guidance, which is pretty equivocal, you might
think.
My Lords, that is the principal basis on which permission is sought. It
is not a fanciful prospect. There is the prospect of the Court of Appeal
reaching a different conclusion and, in the light of the general test, I ask
that your Lordships grant that permission.
LORD JUSTICE KENNEDY: Thank you very much. Is there anything you want to say,
Mr Havers?
MR HAVERS: I will resist the application. I do not think it is helpful to go
further than to submit that the appeal would not have a real prospect of
success. It may be helpful to your Lordship's to try to develop that
submission.
May I add to it the following points, shortly. Firstly, any appeal would
inevitably involve the Trust in further significant expense which it will never
recover because the Trust has already been invited to give an undertaking, in
the event that your Lordships were to grant permission, to continue treatment.
Secondly, if permission were sought and the applicant failed on the appeal, the
Trust will thus incur yet further significant costs which it will never
recover. Thirdly, there is no question of prejudice to the applicant's health
because if he returns to Nigeria, as your Lordships know, treatment is
available for him there. Lastly, I hear what my learned friend says, but there
must, in my submission, be a mixed motive involved in the application for
permission to appeal because, as your Lordships know, if the applicant can
manage to remain in this country until August, by then he will have complied
with the year's requirement and be entitled to treatment free.
So, my Lords, on those additional grounds also, I would invite your
Lordships to reject the application.
LORD JUSTICE KENNEDY: Thank you. We have considered the application for leave
to appeal. We are of the opinion that there are no reasonable prospects of
success on appeal and, accordingly, we are not prepared to grant leave. The
reasons for that conclusion, obviously, are those set out in the judgment.
MR GORDON: In case I have to ask for it, may I have an order for legal aid
assessment?
LORD JUSTICE KENNEDY: You may have legal aid assessment if you need it.
Thank you very much.
© 2000 Crown Copyright
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