Coombs v Dorset NHS Primary Care Trust and Nottingham Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judge | Rix,Aikens,Black LJJ |
| Judgment Date | 30 April 2013 |
| Date | 30 April 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2012/0568 |
Neutral Citation: [2013] EWCA Civ 471
Court of Appeal
Judges: Rix, Aikens and Black LJJ
B3/2012/0568
Appearances: M Spencer QC and Dr T Mangat (instructed by Moore Blatch) for C; J Richards QC (instructed by DAC Beachcroft) for the Trusts.
Issue: Whether a patient detained under the Mental Health Act 1983 could pay for treatment.
Facts: TFC, who had a history of mental illness, suffered a serious head injury whilst detained under s3 Mental Health Act 1983, caused by the negligence of the defendants. The question arose as to whether, as part of the cost of future care arising from the negligence, TFC could pay for supplemental care and treatment under the 1983 Act caused by the head injury (for which the Trusts would be liable). The judge ([2012 MHLR 144) held that it was not incompatible with detention to be able to pay for treatment and so the right to pay had not been taken away.
The Trusts appealed, contending that a detained patient was in a position analogous to a prisoner in that his or her care and treatment was entirely controlled by the authorities and so payment could not be proper. For TFC, it was suggested that the NHS was required to provide the lowest standard of care that counted as reasonable but he was entitled to provide funding so as to ensure the best reasonable standard.
Rix LJ:
1. Can an involuntary patient detained in a mental hospital under the provisions of the Mental Health Act 1983 pay for his care or treatment, or is such a possibility denied the patient (or his family on his behalf) by the provisions of that Act (the ‘MHA 1983’) and/or public policy? That is the rather bald issue raised by this appeal. I call it a bald issue, because it has arisen by way of a preliminary point in circumstances where it is necessarily difficult to visualise the particular circumstances in which it might arise. The preliminary issue has been stated as follows:
‘Whether a person detained under a provision of the Mental Health Act is, as a matter of public policy or otherwise, prevented from paying for his own care/treatment?’
2. The background of this litigation can be briefly stated. The claimant, and in this court the respondent, is Mr Timothy Coombs, who sues by his brother and litigation friend David Coombs. Timothy Coombs has had a long psychiatric history. He was born in 1957. In 1980 he suffered a major depressive disorder. In 1990 a diagnosis of compulsive neurosis was confirmed. In 2000 he was detained under s3 of the 1983 Act in a locked unit at Forston Clinic, Dorset. After complaining of chest pains he was taken to Dorset County Hospital, from where he absconded on 22 December 2000. A few days later, on 25 December, he was found in Nottingham and on 27 December he was fetched from there by ambulance sent from Bournemouth to take him back to the Forston Clinic. On his way, he jumped or fell from the back of the ambulance and sustained a head injury, said to be severe.
3. That injury has led to these proceedings against the 2 health authorities who are alleged to have been responsible for him at that time, namely the defendants, and here the appellants, North Dorset NHS Primary Care Trust and Nottinghamshire Healthcare NHS Trust (the ‘Trusts’). The preliminary issue has arisen as to whether the Trusts can in any event be made responsible for the costs of care or treatment during Mr Coombs' detention under the MHA 1983. It was at one time thought that such detention might be life-long, but it may be, as we were told during the appeal, that the prognosis could, happily, be less gloomy. At any rate it is Mr Coombs' case that, without his brain injury, he could have expected a measure of recovery from the acute illness which led to his detention. The Trusts, however, maintain that his head injury has made little difference to his behaviour or his need for treatment and care.
4. At the time when the preliminary issue was ordered Mr Coombs was detained at Llanbedr Court, a low secure private hospital near Newport in Gwent. The cost of his placement there was funded by the NHS Bournemouth and Poole Primary Care Trust, which I understand to be Mr Coombs' local PCT. On 16 May 2012 Mr Coombs was transferred, with that PCT's approval, to St Andrew's Hospital in Northampton, another private hospital, where that PCT continued to fund his treatment.
5. The Trusts have accepted liability for Mr Coombs' fall from the ambulance and his resultant injury, and his claim has moved to the determination of the quantum of such liability. The practical question raised by the preliminary issue is whether Mr Coombs (or his family on his behalf) can play any role in paying privately for his care or treatment as a detained patient. If he cannot, then the Trusts are to that extent relieved from responsibility as admitted tortfeasors, and that cost will simply fall exclusively on the appropriate NHS funding body. The Trusts' case is that a detained patient is analogous to a prisoner: his care is wholly in the hands of the authorities, who have complete control over his treatment, so much so that it would be inconceivable and against public policy to admit the patient to any role at all in the funding of his treatment. Mr Coombs' case is that, central as that control is, nevertheless, to the extent that there is no conflict with the recommendations of his ‘responsible clinician’ (ie the ‘approved clinician with overall responsibility for the patient's case’, s34(1) of the MHA 1983), a patient is entitled to opt for the best reasonable care and treatment, rather than have to make do with the lowest reasonable standard of such care and treatment, which it is said is the extent of the NHS's statutory responsibility.
6. The judge below, HHJ Platts, sitting as a judge of the High Court, agreed with Mr Coombs ([2012] MHLR 144). He accepted, in accordance with the Trusts' submissions, that a detained patient is in a very different position from a patient who is not subject to compulsory detention, and that the power of choice lies, so far as placement is concerned, with the managers of the hospital where he is currently detained, and, so far as treatment is concerned, with the responsible clinician. Nevertheless, whereas decisions will always lie, therefore, with the authorities, the patient with funds to command will have opportunities to increase the options available to the authorities to improve the standard of his care and treatment. ‘All he is choosing to do is provide the money to facilitate placement or treatment, which is deemed appropriate by the detaining authority’ (at para [63]). Difficulties might arise because of the vulnerability of such patients, or in circumstances where funding could break down, or in managing expectations and the like: but such difficulties were neither insuperable, nor uncommon in any event. There was no statutory impediment, nor any requirement of public policy, which prevented such a conclusion.
7. On this appeal, the parties essentially repeat and elaborate their submissions below. The Trusts say that the judge got it wrong; Mr Coombs says that he was right.
8. I will begin with the statutory framework.
9. The essence, at any rate for present purposes, of this huge Act (the ‘2006 Act’) is contained in ss1, 3 and 4. Section 1 (‘The Secretary of State's duty to promote health service’), places on the Secretary of State the duty to promote a comprehensive health service designed to secure improvement of ‘physical and mental health’, and to secure the provision of the necessary services to do so. Section 1(3) provides:
‘(3) The services so provided must 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.’
Section 3 (‘Secretary of State's duty as to provision of certain services’) states the duty to provide inter alia hospital accommodation and medical services ‘to such extent as he considers necessary to meet all reasonable requirements’. Section 4 makes it clear that such hospital accommodation and medical services include those necessary for persons liable to be detained under the MHA 1983 including those liable to be detained under conditions of high security.
10. Ms Jenni Richards QC, on behalf of the Trusts, relies heavily on s1(3). She submits that this subsection makes it impossible for a detained patient or his family to contribute...
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