The Queen (on the Application of OK) v The Royal Free London NHS Foundation Trust

Hearing dates: 16 November 2020

Approved Judgment

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The parties

The Claimant is an individual who was living in England at the relevant time.

The Defendant is an NHS hospital foundation trust.

The first intervener, Doctors of the World (DoW) is a charitable organisation interested in the provision of medical healthcare to disadvantaged individuals.

The second intervener is the Secretary of State for the department which funds the Defendant.

The issues

This judicial review claim relates to the decisions made relating to the provision or non provision of urgent services to an Overseas Visitor with kidney damage living in England.

The 1st issue is, if the Claimant needed “urgent services” on the 11th of December 2019, whether the Defendant's decision to change from providing scheduled dialysis to ad hoc attendance at A & E for clinical assessment of his needs and if necessary dialysis (without prior payment), involved a misdirection of law, the taking into account of a factor which should not have been considered (immigration status), and/or was made without taking into account a factor which was required by law to be taken into account (the relevant timescale) or was perverse.

The 2 ^nd issue is, if the Claimant needed “urgent services” on the 31 ^st January 2020, whether the Defendant's decision to advise him to attend in future every week on Wednesdays (or more frequently) at A & E for assessment and if necessary dialysis (without prior payment), involved a misdirection of law and/or the taking into account of a factor which should not have been considered (immigration status) and/or was made without taking into account a factor which was required by law to be taken into account (the relevant timescale) or was perverse.

The 3rd issue is whether, if the Claimant did need “urgent services”, the decisions made on the 11th of December 2019 and 31st January 2020 as to (a) the treatment plans, (b) the location of treatment, (c) the frequency of treatment and (d) the standard of care proposed, are administrative decisions which are susceptible to judicial review on the evidence.

The 4th issue is whether the judicial review claim is now academic and has been for a long time in the light of: (1) the provision, starting on the 27th of March 2020, of scheduled, twice weekly dialysis at the Mary Rankin Centre; and (2) the provision in October 2021 of the grant of leave to stay in England for 30 months to the Claimant by the Home Office.

Evidence and bundles

For the hearing I had before me 6 bundles, bundle one was a core bundle containing the court documents and a witness statement from the Claimant and a witness statement from Dr. Goodlad. The second bundle contained correspondence and medical notes. The third bundle was provided by DoW. There was a fourth bundle provided by the Secretary of State. The 5th bundle contained the authorities. The 6th bundle was provided by the Claimant late in the day and contained more correspondence and the Claimant's medical records. I also had an additional witness statement from Dr. Cross which Mr. justice Murray did not have.

I was also provided with written skeleton arguments by both the parties and both interveners.

The summary of statement of grounds and response

On the 5th of February 2020 the Claimant instructed solicitors and sought legal aid to bring judicial review proceedings of the decisions relating to the care he had received and was receiving from the Defendant. It was withdrawn on 4 June 2020. At some later stage the funding was on a conditional fee agreement. The Defendant complains that it was not told that had occurred until this hearing.

The Defendant disclosed to the Claimant his medical records on the 2nd of March 2020.

On the 10th of March 2020 the Claimant issued a claim form under CPR part 8 for judicial review of and the quashing of two decisions made by the Defendant, the first on the 11th of December 2019 and the second on the 31st of January 2020.

In para 7 of the Claimant's Grounds and Remedies it was claimed:

“By this claim, C contends that D misdirected itself in law and/or acted perversely in determining that, in C's case, chronic scheduled dialysis is not an “urgent service” under reg 3(1A) as interpreted in light of D's duty under s 6 of the Human Rights Act 1998(“ HRA 1998”) not to subject C to inhuman or degrading treatment contrary to art 3 of the European Convention on Human Rights (“ECHR”) or to subject him to a disproportionate interference with his right to respect for private life contrary to art 8 ECHR.”

The reasons given were that the Defendant had provided the Claimant with regular scheduled dialysis three times a week between August 2019 and the 10th of December 2019 but with drew it on the 11th of December 2019. The Claimant asserted physical and mental suffering verging on a breach of Article 3 of the European Convention on Human Rights, through inhuman or degrading treatment.

In the Claimant's Grounds and Remedies, dated the 9th of March 2020, the Claimant referred to the correspondence between the parties. Firstly a letter before action dated 7th of February 2020 requesting a restart of routine scheduled dialysis three times a week and asserting that it was either immediately necessary or an urgent service. The Claimant referred to the Defendant's pre-action protocol response letter dated 21st of February 2020 in which the Defendant admitted that it withdrew routine scheduled treatment on the 11th of December 2019 but instead offered and provided urgent treatment on an ad hoc basis until the 31st of January 2020 when the Claimant's treatment plan was changed to weekly dialysis on Wednesdays, if blood tests and examinations at A & E mandated it under the urgent service gateway in the relevant legislation. The Defendant denied that it had refused treatment, unfettered by up front payment, and asserted they were giving urgent services treatment under a plan.

Grounds asserted:

“Ground 1

The Defendant misdirected itself in law as to the meaning of “urgent service” in regulation 3(1A) of the NHS Overseas Visitors Regs 2015

54. C submits that “urgent service” means a service which is clinically indicated as appropriate before the patient is expected to leave the UK. In the absence of a clinical decision that C does not require chronic scheduled dialysis, it remains an “urgent service” and D is required to provide it in advance of payment.”

“Ground 2

Alternatively to Ground 1, the Defendant's self-direction in law as to the meaning of “urgent service” in regulation 3(1A) of the NHS Overseas Visitors Regs 2015 violates sections 3 and 6 of HRA 1998, in that it gives rise to conditions which verge on inhuman and degrading treatment within the meaning of art 3 ECHR.”

The remedies sought were: quashing of the two clinical decisions; a declaration as to the true interpretation of Regulation 3(1A) of the NHS (Charges to Overseas Visitors) Regulations 2015; a declaration that the Defendant had withheld dialysis from the Claimant in breach of S.s 3 and 6 of the Human Rights Act 1998 and Art 3 of the ECHR; anonymity and interim relief.

By an order dated the 10th of March 2020 Mr justice Garnham granted the anonymity order sought until disposal of the claim, adjourned the application for interim relief pending service on the Respondent and gave directions.

On the 24th of March 2020, in the Grounds of Resistance, the Defendant asserted that permission for judicial review should be refused and that no interim relief should be granted because the Defendant was providing dialysis to the Claimant weekly and because the clinical decisions made by the Defendant's clinicians about urgent treatment were ones which provided no scope for judicial review. In addition the Defendant responded that the asserted breach of Art 3 of the ECHR was unarguable because dialysis was being provided. The Defendant pointed out that the Claimant did not base the judicial review on any immediate necessity grounds but only on the urgent service grounds. The Defendant admitted that the Claimant was likely to come to harm with no treatment. The Defendant relied on the clinical plan made by a consultant, Dr. Goodlad, in late January 2020 setting out that the Claimant had recovered a little kidney function and required at least weekly dialysis to avoid significant harm and potential loss of life in the medium term and that the Claimant had been invited to attend hospital on Wednesdays to obtain that dialysis. The Defendant admitted that the Claimant's need for dialysis was urgent in that it could not wait until the Claimant left the UK. As to the frequency, the Defendant asserted that there was no medical evidence to support the assertion that the Claimant needed dialysis three times a week. The Defendant referred to the Claimant's blood tests which were within the appropriate range between December 2019 and the end of February 2020. The Defendant also asserted that the Claimant's suffering alleged after...