R W, X, Y and Z v The Secretary of State for Health The Secretary of State for the Home Department (Interested Party) The British Medical Association (Intervener)
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls |
| Judgment Date | 14 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1034 |
| Docket Number | Case No: C1/2014/1780 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 October 2015 |
[2015] EWCA Civ 1034
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE SILBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master Of The Rolls
Lord Justice Briggs
and
Lord Justice Bean
Case No: C1/2014/1780
David Wolfe QC and Nick Armstrong (instructed by Deighton Pierce Glynn) for the Appellants
Marie Demetriou QC and Sarah Abram (instructed by Government Legal Department) for the Respondent
Julie Anderson (instructed by Government Legal Department) for the Interested Party
Anya Proops (instructed by BMA Legal Department) for the Intervener
Hearing dates: 20–21 July 2015
The Master of the Rolls:
This is the judgment of the court.
As a general rule, health services which are provided in England and Wales have to be provided free of charge. There is, however, an exception in the case of persons who are not ordinarily resident in the United Kingdom. The relevant charging powers are set out in the National Health Service (Charges to Overseas Visitors) Regulations 2011 (SI 2011/1556) as amended ("the Charging Regulations"). In 2011, the Secretary of State for Health ("the Secretary of State") issued guidance on implementing the Charging Regulations ("the Guidance"). The Guidance has subsequently been amended, but the amendments are of little relevance for present purposes.
On 31 October 2011, the Immigration Rules (HC 385) were amended so as to introduce sanctions which, with certain exceptions, could be imposed on individuals who (i) are not resident in the United Kingdom, (ii) are seeking to enter or remain in the United Kingdom, but (iii) have unpaid NHS debts of at least £1,000. The purpose of the sanctions is to assist the NHS financially by supporting debt recovery and deterring the deliberate abuse of NHS services.
The relevant changes to the Immigration Rules introducing immigration sanctions came into effect on 31 October 2011. Rule 320(22) provides:
" Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused
… where one or more relevant NHS body has notified the Secretary of State that the person seeking entry or leave to enter has failed to pay a charge or charges with a total value of at least £1000 in accordance with the relevant NHS regulations on charges to overseas visitors". [emphasis added]
The equivalent immigration sanction provision in relation to leave to remain and variation of leave to enter or remain is in Rule 322(12).
In these judicial review proceedings, the claimants challenge the lawfulness of part of the Guidance. The complaint is directed at the way in which certain non-clinical information relating to non-resident patients ("the Information") is transmitted by the relevant NHS trusts and NHS foundation trusts (referred to collectively in this judgment as "the NHS bodies") to the Secretary of State who then passes it on to the Home Office (we shall refer to the latter department, rather than to its Secretary of State, to distinguish her from the Secretary of State for Health). The Information includes the name, date of birth and gender of the patient and (if known) his or her current address, the nationality and travel document number with expiry dates, as well as the amount and date of the debt and the NHS body to which it is owed.
The claimants are four non-UK residents who at the stage of the issue of this claim had been or were liable to be charged in excess of £1,000 each for NHS services, and were, therefore, liable to immigration sanctions if they failed to pay the charges due.
For the claimants David Wolfe QC and Nick Armstrong seek judicial review of the Guidance on the grounds that:
(i) The Information is private and confidential;
(ii) The NHS bodies have no power to transmit the Information to the Secretary of State who in turn has no power to transmit it the Home Office;
(iii) Even if there is such a power at each stage, the Guidance is unlawful because it purports to require the NHS bodies to share the Information with the Secretary of State thus fettering their discretion to decide whether or not to do so; and
(iv) Even if there is such a power at each stage, the transmitting of the Information is in breach of the claimants' rights to respect for their private lives under article 8 of the European Convention on Human Rights ("the Convention") because of the lack of the safeguards which article 8(2) requires.
Marie Demetriou QC and Sarah Abram, counsel for the Secretary of State, supported by Julie Anderson, counsel for the Home Office, contend that:
(i) the Information is not private or confidential;
(ii) the NHS bodies have not merely the power but the duty to transmit it to the Secretary of State; and the Secretary of State has the power to transmit it to the Home Office;
(iii) since the NHS bodies are under a duty to transmit the Information to the Secretary of State, there is no discretion to fetter;
(iv) there is no breach of the Claimants' Article 8 rights.
Permission to pursue this claim was refused at first instance but granted on the papers in this court by Arden LJ, who remitted the case for a substantive hearing in the Administrative Court. This took place on 18 and 19 March 2014 before Silber J. By a reserved judgment dated 15 May 2014 he dismissed the claim. He held that:
(i) the Information did not constitute confidential or private information because (a) it only identified the non-resident patient, the extent of the indebtedness and the NHS body to which the debt is owed, and (b) it did not refer to the patient's clinical history, why the patient sought medical treatment, the nature of the treatment received or anything about the patient's health;
(ii) even if that were wrong and the Information was confidential or private, its transmission pursued a legitimate aim and was proportionate to the low level of harm caused by the limited disclosure involved;
(iii) each of the NHS bodies had the statutory power to transmit the Information if it appeared "necessary or expedient for the purposes of or in connection with its functions" (section 47 of the National Health Services Act 2006 ("the 2006 Act")). The transmission was necessary or expedient for the purposes of or in connection with the functions of the NHS bodies in the light of their obligations; and
(iv) the Secretary of State had the power to transmit the information to the Home Office both under statute and at common law.
The British Medical Association ("BMA") were concerned by the judge's conclusion that the Information was not private and confidential, and applied to be joined to the proceedings on appeal. On 20 October 2014 Richards LJ granted the claimants permission to appeal (which the judge had refused) and also made an order permitting the BMA to intervene on the issue of privacy/confidentiality.
The duty to provide free health services and the right to charge
The Secretary of State has a number of general duties in relation to the promotion and provision of the health service in England, described in section 1 of the 2006 Act, which together with other relevant statutory material is set out in the Appendix to this judgment. Section 1 includes duties on the part of the Secretary of State:
"(1) [to] continue the promotion in England of a comprehensive health service ………; and
"(2)… [to] exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act".
Section 1(4) of the 2006 Act provides that "the services provided as part of the health service in England must be free of charge except in so far as the making or recovery of charges is expressly provided for by or under any enactment, whenever passed". Section 2(1) provides that 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."
Section 175 allows the Secretary of State to make regulations providing for the making and recovery of charges for services under the 2006 Act in respect of persons not ordinarily resident in Great Britain.
The Charging Regulations
Regulation 3 of the Charging Regulations provides that relevant NHS bodies " must make and recover charges" [emphasis added] from overseas visitors, unless the Regulations exempt either the relevant service or the relevant patient from charges. There is no provision for means testing.
Exempted services include accident and emergency ("A&E") services, whether provided at a hospital or elsewhere, although only up to the point of admission as an in-patient; family planning services; treatment for certain infectious diseases or for sexually transmitted infections; and the treatment of anyone detained under the Mental Health Acts. Likewise, certain categories of overseas visitor — in particular, refugees, asylum seekers, children in care and persons believed to be victims of human trafficking — cannot be charged for any hospital treatment.
The rationale for the charging regime for overseas visitors
Mr. Craig Keenan, an official at the Department of Health, has explained in a witness statement that, by requiring NHS bodies to make and recover charges from overseas...
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