Coombs v North Dorset NHS Primary Care Trust and another

JurisdictionEngland & Wales
JudgeLord Justice Rix,Lord Justice Aikens,Lady Justice Black
Judgment Date30 April 2013
Neutral Citation[2013] EWCA Civ 471
Docket NumberCase No: B3/2012/0568
CourtCourt of Appeal (Civil Division)
Date30 April 2013

[2013] EWCA Civ 471

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

HIS HONOUR JUDGE PLATTS

[2012] EWHC 521 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Rix

Lord Justice Aikens

and

Lady Justice Black

Case No: B3/2012/0568

Between:
North Dorset Nhs Primary Care Trust & Anr
Appellants
and
Mr. Timothy Frederick Coombs
Respondent

Jenni Richards QC (instructed by DAC Beachcroft LLP) for the Appellants

Martin Spencer QC & Tejina Mangat (instructed by Moore & Blatch) for the Respondent

Hearing dates : 23 October 2012

Lord Justice Rix
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 section 3 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 two 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 198It 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", section 34(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, His Honour Judge Platts, sitting as a judge of the High Court, agreed with Mr Coombs (reported as [2012] EWHC 521 (QB)). 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.

The National Health Service Act 2006

9

The essence, at any rate for present purposes, of this huge Act (the "2006 Act") is contained in sections 1, 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 section 1(3). She submits that this subsection makes it impossible for a detained patient or his family to contribute in any way to his care or treatment. That submission depends, however, on the hypothesis that the NHS is both (a) the sole and exclusive provider of accommodation and medical services to patients detained under the MHA 1983, and (b) unable to charge for any of the services it provides or commissions. Hypothesis (a), however, is at this stage assumed. It remains to be seen if it is made good by reason of anything under the MHA 1983. The sections of the 2006 Act referred to above deal with accommodation and medical services generally, whether for the general public or for those using psychiatric services voluntarily under the MHA 1983 or for those detained under that Act. The only distinction made is in respect of "high security psychiatric services", (ie where detained patients require treatment under conditions of high security "on account of their dangerous, violent or criminal propensities", as to whom section 4(4) states that "High security psychiatric services may be provided only at hospital premises at which services are provided only for" such persons.

11

Moreover, we know that persons generally can avail themselves of private medical services and are not required to go to the NHS as a sole provider of such services. It is for that reason that case law and statute has had to develop special rules in relation to personal injury claims in such situations. Thus, although the NHS is available for personal injury claimants who, if they choose to avail themselves of its services, will not be able to make a double recovery from the tortfeasor in respect of such care and treatment, they are nevertheless entitled to opt for private funding, in which case the tortfeasor concerned will remain liable for the relevant costs: see Peters v. East Midlands Strategic Health Authority [2009] EWCA Civ 145, [2010] QB 48. Moreover, in order to protect the public...

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  • Coombs v Dorset NHS Primary Care Trust and Nottingham Healthcare NHS Trust
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 30 April 2013
    ...EWCA Civ 471" class="content__heading content__heading--depth1"> Neutral Citation: [2013] EWCA Civ 471 Court of Appeal Judges: Rix, Aikens and Black LJJ B3/2012/0568 Coombs and Dorset NHS Primary Care Trust and Nottingham Healthcare NHS Trust Appearances: M Spencer QC and Dr T Mangat (instr......

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