The Queen (on the Application of A) v The Secretary of State for Health NHS Blood and Transplant (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Mr Justice Haddon-Cave |
| Judgment Date | 09 November 2017 |
| Neutral Citation | [2017] EWHC 2815 (Admin) |
| Docket Number | Case No: CO/4002/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 November 2017 |
[2017] EWHC 2815 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mr Justice Haddon-Cave
Case No: CO/4002/2015
and
Helen Mountfield QC and Sarah Hannett (instructed by Deighton Pierce Glynn) for the Claimant
Ivan Hare QC (instructed by The Government Legal Department) for the Defendant
Hearing date: 27 April 2017
Introduction
This is the judgment of the Court to which both of us have contributed.
The Claimant is an illegal immigrant unlawfully in England. As such he is not "ordinarily resident" in Great Britain within the meaning of Section 175(2) of the National Health Service Act 2006 ["the 2006 Act"], the provisions governing charges for medical treatment of non-residents. The Claimant has suffered from end stage kidney disease ["ESKD"] from 2005 and is HIV positive. He has undergone regular kidney dialysis and hopes for a kidney transplant.
The Defendant issued the NHS Blood and Transplant (Gwaed a Thrawsblaniadau'r GIG) (England) Directions 2005 ["the 2005 Directions"] which govern the allocation of organs for the purposes of transplantation. Candidates for transplantation are divided into two groups, Group 1 and Group 2. Group 1 comprises broadly persons "ordinarily resident in the United Kingdom". Group 2 comprises persons who do not fall within Group 1. Paragraph 4(2) provides that no person in Group 2 shall receive an organ for which there is a clinically suitable person in Group 1. The Claimant, by reference to his immigration status, falls within Group 2. Kidneys suitable for transplantation being in short supply, his claim is that, in practice, he will never be offered a kidney or a kidney of such quality that successful transplantation will follow.
The Claimant makes no attack on the underlying policy behind the 2005 Directions and no longer seeks to make a claim pursuant to the European Convention on Human Rights ["ECHR"]. His claim is confined to the submission that the Secretary of State lacked the power under the 2006 Act (and its predecessor) to make or maintain the 2005 Directions.
Factual Background
The Claimant is a national of Ghana, born on 15 October 1970. He left Ghana in 2000. In 2003 or 2004 the Claimant entered the United Kingdom illegally and has remained ever since without leave to remain. In 2005, the Claimant was diagnosed as suffering from ESKD and HIV and commenced kidney dialysis and anti-retroviral treatment. In 2006 the Claimant sought leave to remain in the United Kingdom on Human Rights grounds (Articles 3 and 8 of the ECHR). In 2010 his application for leave to remain was refused. In 2015 the Claimant exhausted all of his appeal rights when his appeal was rejected by the Court of Appeal ( GS and Others v SSHD [2015] 1 WLR 3312) and the Supreme Court refused permission to appeal.
On 11 August 2015, the Claimant applied for judicial review of the 2005 Directions. Permission to apply for judicial review was refused on the papers (Whipple J) on 6 October 2015 and refused following oral application (Collins J) on 12 November 2015. The Claimant sought permission to appeal the order of Collins J, solely on ultra vires grounds but was refused permission on the papers (Gross LJ) on 6 April 2016. Permission was granted on oral renewal (Gross LJ) on 10 February 2017 and the matter remitted to the Divisional Court.
The Legislation and the 2005 Directions
The primary duties of the Secretary of State are contained in Section 1 of the 2006 Act:
" 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 physical and mental illness.
(2) For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act.
(3) The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.
(4) The services provided as part of the health service in England 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."
By Section 17(9) of the Heath and Social Care Act 2012, Parliament inserted paragraph 7C of Schedule 1 to the 2006 Act, making provision for the facilitation of tissue and organ transplant:
"7C The Secretary of State must for the purposes of the health service make arrangements for—
(a) collecting, screening, analysing, processing and supplying blood or other tissues,
(b) preparing blood components and reagents, and
(c) facilitating tissue and organ transplantation."
By Section 28 of the 2006 Act the Secretary of State may establish special bodies for exercising any functions under the Act, any such body to be called a Special Health Authority. The Secretary of State exercised his power under the materially identical predecessor to Section 28 (Section 11 of the National Health Service Act 1977 ["the 1977 Act"]), namely, the NHS Blood and Transplant (Gwaed a Thrawsblaniadau'r GIG) (England) (Establishment and Constitution Order 2005) ( SI 2005/2529) ["the 2005 Order"] to create a Special Health Authority known as NHS Blood and Transplant ["the Interested Party"]. Section 7 of the 2006 Act empowers the Secretary of State to direct a Special Health Authority to exercise a relevant function. By Article 3 of the 2005 Order, the Secretary of State delegated his functions in relation to transplantation to the Interested Party.
Under Section 8 of the 2006 Act, the Secretary of State has power to give directions to a Special Health Authority, and thus to the Interested Party. The relevant provisions read:
"8(1) The Secretary of State may give directions to any of the bodies mentioned in subsection (2) about its exercise of any functions.
(2) The bodies are –
…
(c) NHS trusts, and
(d) Special Health Authorities.
(3) Nothing in [any] provision made by or under this or any other Act affects the generality of subsection (1)."
The Secretary of State relies on Section 8 as the source of the power to give the relevant directions, in combination with Section 272(7) of the 2006 Act which provides:
"(7) Any power under this Act to make orders, rules, regulations or schemes, and any power to give directions –
(a) may be exercised either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case,
(b) may be exercised so as to make, as respects the cases in relation to which it is exercised—
(i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise),
(ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case, or different provision as respects the same case or class of case for different purposes of this Act,
(iii) any such provision either unconditionally or subject to any specified condition, and
(c) may, in particular, except where the power is a power to make rules, make different provision for different areas."
The Claimant fairly states that the Secretary of State did not always rely on Sections 8 and 272(7) of the 2006 Act as the relevant powers. Nevertheless, that is now the basis of the Secretary of State's analysis.
The 2005 Directions
The 2005 Directions were originally made pursuant to powers conferred by Sections 16D(1), 17 and 126(4) of the 1977 Act. The Directions were amended in 2009 and subsequently pursuant to the provisions of the 2006 Act. In their current form the relevant passages within the Directions read as follows:
" Functions in relation to the transplantation of organs and tissues
3(1) In order to promote or secure the effective transplantation of organs and tissues for the purposes of the health service, the Secretary of State directs NHSBT [The Interested Party]–
(a) to provide an organ and tissue matching and allocation service, having regard to the need to ensure the –
(i) maximum and most effective use of organs and tissues;
(ii) safety of persons and their survival rates; and
(iii) equity and integrity of the organ sharing system;
(b) to maintain a list of persons who are in need of or are considered suitable for an organ or tissue transplant and to determine the criteria for inclusion on such list;
…
Functions in relation to the allocation of organs for transplantation
4(1) Subject to sub-paragraphs (2), (3) and (4) of this paragraph, the allocation of organs for the purposes of transplantation under paragraph 3(1) and sub-paragraph (1), NHSBT shall have regard to guidance issued by the Department of Health on the allocation of organs for the purposes of transplantation which is published before 30 th March 2010 and, in order to give effect to that guidance, may allocate organs otherwise than under the Schemes. [NHS Blood and Transplant (England) (Amendment) Directions 2010]
(2) No person in Group 2 shall receive an organ for which there is a clinically suitable person in Group 1.
(3) Group 1 shall comprise –
(a) persons ordinarily resident in the United Kingdom;
(b) persons who are –
(i) members of Her Majesty's United Kingdom Forces serving abroad;
(ii) other Crown servants employed in the right of Her Majesty's Government of the United Kingdom having been recruited in the United Kingdom and who are serving...
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