F v Surrey County Council

Hearing dates: 9 February 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The claimant is a recovering alcoholic. In April 2021, his mother was very concerned about him and telephoned i-access, a drug and alcohol service provided by Surrey and Borders Partnership NHS Foundation Trust (“SaBP”) on behalf of Surrey County Council (“the Council”). She says that they refused to provide treatment unless he first undertook an alcohol reduction programme, but it was not safe for him to undertake that programme. She arranged for him to be admitted as an in-patient to a private facility, to receive medically assisted alcohol detoxification (“detox”) treatment. The cost of the treatment was £19,650. It was paid with the assistance of a loan from the claimant's father. After 15 days, the treatment was successful and the claimant has been sober ever since. In November 2021, his mother asked the Council (“the Council”) to reimburse the cost of the treatment. On 23 December 2021, the Council refused. By this claim the claimant challenges what he describes as the Council's “blanket policy” not to offer residential detox to patients who have not undertaken an alcohol reduction programme and the refusal to reimburse.

The original grounds of challenge were: that the Council (1) operates an inflexible and/or irrational unpublished policy; (2) failed to publish the policy; (3) acted procedurally unfairly; and (4) breached the claimant's rights under Article 14ECHR read with Article 8. The relief claimed was a quashing order of the refusal to reimburse of 23 December 2021 and damages for breach of Convention rights.

Permission was refused on the papers by Bennathan J on 21 July 2022. Ground 3 was abandoned before the oral permission hearing on 3 November 2022. At that hearing, I granted permission to apply for permission to apply for judicial review on grounds 1 and 4, but refused permission on ground 2. The Council filed its Detailed Grounds of Defence and evidence on 8 December 2023. One of the documents disclosed was SaBP's Community Detox Team Operational Policy dated June 2018 (“the Operational Policy”). On 23 January 2023, the claimant applied to amend the Statement of Facts and Grounds to challenge the Operational Policy (ground 1.1), its application in this case (ground 1.2) and the failure to disclose it (ground 1.3). Amended relief was also claimed, in particular, a declaration that the Operational Policy is unlawful, though this was not pursued at the hearing. The Council opposes the application to amend, saying that it has been made too late and that the inclusion of ground 1.3 is an attempt to revive the original ground 2, in respect of which I refused permission to apply for judicial review, and therefore an abuse of the process of the court.

Although there is some force in the submission that the application to amend should have been made sooner than 23 January 2021, it has not been necessary for me to consider in detail the procedural arguments for and against amendment, because I have concluded that, even if the application were granted, the new points would not assist the claimant. That being so, there is no point in allowing the amendment and I therefore refuse the application.

The facts

The lead-up to the claimant's admission to the private facility

The claimant started to become dependent on alcohol while studying at university. His alcoholism worsened during the lockdowns imposed for the Covid-19 pandemic. By Christmas 2020, he was drinking approximately 40 units per day. His weekly intake was 20 times above the recommended safe amount. He realised that this level of drinking was unsustainable and resolved to stop. He planned to reduce his intake gradually, but was unable to do so because of anxiety and mental instability. From the second week of January 2021, he began vomiting because of the quantity of alcohol he was drinking. This meant that he was ingesting less alcohol. On the afternoon of 16 January 2021, he had an alcohol withdrawal seizure and was taken by ambulance to the Royal Surrey County Hospital (“RSCH”), where he was prescribed Librium, a medicine used for detox.

On 17 January 2021, two doctors came to see the claimant. They told him that the RSCH was not an alcohol rehabilitation facility. He would therefore be discharged on the following day, after receiving advice from an alcohol liaison nurse (“ALN”). The ALN was Sian Davies. On 18 January 2021, she visited the claimant twice. The clinical notes record the nurse saying that the claimant was “unlikely to be eligible for community detox services as no prior engagement to do abstinence preparation” and that because he was physically dependent on alcohol he should aim for “reduction of alcohol use rather than abrupt cessation”. This accords with the claimant's recollection that he was told that he would have to continue to drink alcohol to avoid another seizure. The nurse recorded that she had made a referral to “i-access”.

i-access attempted to contact the claimant by letter and text message on 19 January 2021, and by telephone on 4 February 2021. The letter offered “a Telephone Assessment in the first instance” and gave a number to call to arrange such an assessment. It continued:

“It is important to note that if we do not hear from you by Tuesday 26th January 2021, we will assume that you do not wish to access support from our service at this time and close your referral” (emphasis added).

The claimant did not respond to the letter or text. He did take the telephone call, but ended it saying that he was expecting a call from his university tutor. On 17 February 2021, i-access sent the claimant a letter, copied to his GP, saying that they were closing his file, but he should not hesitate to contact them if he required support in the future.

The claimant's mother describes in her witness statement what happened when the claimant returned home from hospital in January 2021. He began withdrawing within hours. He drank to alleviate his symptoms and spent most of each day in bed stressing about when his next drink was due. The need to avoid another seizure took over his life. He could not entertain the idea of reducing his drinking. Any suggestion of it led him to become uncontrollably stressed.

By April 2021, the claimant was in crisis. By 15 April 2021, he had stopped eating and begun vomiting again. His mother's evidence is that she contacted the (private) addiction treatment providers to see if he could be detoxed in the community, as this was significantly cheaper than in-patient detox treatment. They all advised that he did not qualify for community detox because he was at high risk due to his recent seizure, recent partial detox and level of alcohol usage. On 19 April 2021, with the claimant's permission, his mother called his university GP, who said that it was local authorities' responsibility to commission and provide drug and alcohol treatment.

The claimant's mother's evidence is that she then called i-access three times, on 19, 20 and 21 April 2021. On each occasion she spoke to a different member of staff. All three staff members responded that the service did not provide detox as a first treatment. It was mandatory to engage in an alcohol reduction programme first. The only assessment that could be offered was an assessment to see whether the claimant was suitable for an alcohol reduction programme. If so, and if he began such a programme, they would conduct a review at the six-week point and might then assess whether he was suitable for detox.

The i-access patient records do not include any reference to the calls on 19 or 20 April 2021. A call at 9.02 am on 21 April 2021 is recorded and a secure electronic message was sent to Elizabeth Findlay, a specialist substance abuse nurse. She called the claimant's mother back the same morning. The record of that call shows that the claimant's mother said that the claimant was “having a private detox at the [private facility] this friday 23 ^rd april”. The claimant's mother says that this is an incomplete record of what was said. She says it would have made no sense to call i-access simply to tell them that the claimant was going to have detox privately. She says that there was a conversation about whether i-access could help and it was only when it became clear that they could not that she said that the private facility had offered a bed from 25 April 2021 and they would have to confirm that they wanted to take that bed up by 23 April 2021.

It is common ground that there was a further telephone call between the claimant's mother and Martyn Munro, the Council's Senior Public Health Lead, on 21 April 2021. The claimant's mother's evidence is that Mr Munro “reinforced the position put forward by i-access that the service can only provide a reduction programme for the Claimant as he had not done one before”, but that after she pressed him he said he would speak to the service and come back to her later that day. He did not, however, get back to her, so they accepted the bed at the private facility.

Mr Munro's recollection was that the claimant's mother had told him that i-access had said they could not assess the claimant for residential detox. This did not accord with his...