R (A) v Secretary of State for Health

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Ward,Lord Justice Lloyd,Lord Justice Rimer
Judgment Date30 March 2009
Neutral Citation[2009] EWCA Civ 225
Docket NumberCase No: C1/2008/1081
Date30 March 2009

[2009] EWCA Civ 225

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE MITTING

Before:

The Rt Hon Lord Justice Ward

The Rt Hon Lord Justice Lloyd and

The Rt Hon Lord Justice Rimer

Case No: C1/2008/1081

C0/8095/2006

Between
R on the Application of YA
Respondent
Secretary of State for Health
Appellant

Miss Elisabeth Laing Q.C. and Miss Holly Stout (instructed by Department of Health) for the appellant

Mr Nigel Giffin Q.C. and Mr Stephen Knafler (instructed by Pierce Glynn) for the respondent

Hearing dates: 17th and 18th November 2009

Lord Justice Ward

Lord Justice Ward:

The troublesome questions arising on this appeal

1

This appeal concerns the entitlement of failed asylum seekers to treatment free of charge provided by the National Health Service. Are they ordinarily resident in the United Kingdom? Do they reside lawfully in the United Kingdom so as to become exempt from charges if they have so resided for at least 12 months before receiving treatment? Do the National Health Service Trusts have a discretion to withhold treatment from them if they cannot pay for it? Is the guidance given by the Secretary of State for Health to NHS Trust hospitals in England lawful?

The parlous predicament of Mr A giving rise to his claim for judicial review

2

YA is a Palestinian born in Hebron on the West Bank 35 years ago. In about 1997/8 he was diagnosed to have a liver problem but it did not at first seem to affect his daily life. His case was that he became involved in Hamas, but when asked to participate in a political assassination, he fled at first to Gaza, thence to Egypt some time in about 2002.

3

There his health deteriorated and he consulted a doctor but was told that he could not help him, apparently because the facilities in Egypt were inadequate. He decided to seek refuge in the United Kingdom and through an agent travelled to Turkey and then flew to London. He says the agent removed his passport during this flight. He claimed asylum on his arrival here on 9th July 2005.

4

He was duly granted temporary admission, initially until 10th September 2005. He was, however, refused leave to enter by the Secretary of State for the Home Department by letter dated 16th August 2005. His appeal against that decision was rejected on credibility grounds on 13th December 2005, the immigration judge finding that his main reason for leaving Egypt was not his fear of Hamas but his desire to receive medical treatment in England. He cannot return to the Middle East because he has no travel documents: the Palestinian authorities cannot issue them because Palestine is not a recognised state and Israel refuses as a matter of policy to facilitate the return of Palestinians to the occupied Palestinian territories.

5

His medical condition has steadily deteriorated. By October 2005 he was seen for the first time by a consultant at the West Middlesex University Hospital. By July 2006 his condition had worsened so much that he needed to be admitted for further tests to try to establish the underlying causes of his liver disease and for further investigations into the possibility that he was also suffering from lymphatic cancer. He was referred to the Overseas Patients' Officer who, having taken account of the Guidance to the NHS Trust Hospitals in England given by the Secretary of State for Health (“the Guidance”) on Implementing the Overseas Visitors Hospital Charging Regulations, informed him that because he was a failed asylum seeker, he was not eligible for free medical treatment under the National Health Service. Because he had no means to pay for treatment, he was discharged on 3rd August 2006, the discharge summary recording that he was “not entitled to NHS care, due to failed asylum seeker status”. One can easily imagine how distressing this must have been. He has since been presented with a bill for some £9,000 in respect of the treatment he has received but being destitute and dependent on the support provided by NASS, he cannot possibly pay for the treatment he undoubtedly needs.

6

Faced with that dilemma he issued his claim for the judicial review of the decision to charge him and the refusal of the hospital to provide further healthcare. When the hospital agreed to treat him without charge—as has now happened—his claim was amended by substituting the Secretary of State for Health as defendant, the challenge now being directed to the lawfulness of the Guidance. All agreed it was fit and proper for this matter to be considered by the court because, as the evidence shows, there are a large number of failed asylum seekers, many unable to return home, who suffer severe medical problems, such as cancer and H.I.V., which, whilst perhaps not all life-threatening conditions, are, nonetheless, conditions which need urgent healthcare. Because most of those who suffer are invariably penniless and destitute and quite unable to pay for the treatment they need, their predicament has become a legitimate cause of widespread concern which has been eloquently voiced by many charitable organisations and even raised in Parliament. If, therefore, the Guidance does need correction, then it is important that the court declare sooner rather than later whether or not it is unlawful.

7

Thus the matter came before Mitting J. and on 16 April 2008 he allowed the application for judicial review and declared the Guidance to be unlawful in so far as it advised NHS Trusts to charge failed asylum seekers for NHS hospital treatment. He granted permission to appeal.

The National Health Service Scheme

8

Although the National Health Service Act 1977 was in force in England and Wales at the time when the decisions under challenge were made, it has now been repealed and replaced in substantially similar terms by the National Health Service Act 2006 (“the 2006 NHS Act”) which is in force in England and the National Health Service (Wales) Act 2006 in Wales. For convenience, therefore, I shall cite the current provisions from the 2006 NHS Act. The material parts are these:

Part I

Promotion and Provision of the health service in England

The Secretary of State and the health service in England

1

Secretary of State's duty to promote health service

(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—

(a) in the physical and mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of illness.

(2) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.

(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.

General power to provide services

2

Secretary of State's general power

(1) The Secretary of State may—

(a) provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act, and

(b) do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.

Provision of particular services

3

Secretary of State's duty as to provision of certain services

(1) The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements—

(a) hospital accommodation,

(c) medical … services,

(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service,

(f) such other services or facilities as are required for the diagnosis and treatment of illness. …”

9

In practice, the Secretary of State discharges these duties by exercising his powers under section 7 of the Act to direct Primary Care Trusts to exercise his functions. There may then be further delegation under section 19 from the Primary Care Trust to an NHS Trust such as the West Middlesex University Hospital established under section 25.

10

Although, as we have seen, the general rule is, as expressed in section 1(3), that the services must be provided free of charge, Part 9 of the Act does allow for charges to be made in certain circumstances, for example, charges for drugs. Relevant to this appeal is section 175 which is in these terms:

175 Charges in respect of non-residents

(1) Regulations may provide for the making and recovery, in such manner as may be prescribed, of such charges as the Secretary of State may determine in respect of the services mentioned in subsection (2).

(2) The services are such services as may be prescribed which are—

(a) provided under this Act, and

(b) provided in respect of such persons not ordinarily resident in Great Britain as may be prescribed.

(3) Regulations under this section may provide that the charges may be made only in such cases as may be determined in accordance with the regulations. …”

11

The regulations made pursuant thereto are the National Health Service (Charges to Overseas Visitors) Regulations 1989 (SI 1989 No. 306 as amended) (“the Regulations”). Regulation 1(2) contains various definitions including:

““overseas visitor” means a person not ordinarily resident in the United Kingdom;

“refugee” means a person who is a refugee within the meaning of Article 1 of the Convention relating to the Status of Refugees 1951 …”

12

The following regulations are material:

2. Making...

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