B e f o r e :
| The Queen (on the application of A)
|Partnerships in Care Limited
Mr Steven Kovats (instructed by Radcliffesle Brasseur) for the Defendant
Crown Copyright ©
Mr Justice KEITH
The basic facts
The course of the proceedings
The application for an adjournment
Decision of a public authority
"It is the Secretary of State's duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements--
(a) hospital accommodation...
(c) medical [and] nursing... services...
(f) such other services as are required for the diagnosis and treatment of illness."
The Secretary of State may delegate these functions to health authorities ( section 16D(1)), including his functions relating to mental health and nursing homes: section 16D(3). The current relevant scheme of delegation is that contained in the National Health Service (Functions of Health Authorities and Administrative Arrangements) (England) Regulations 2001 (SI 2001/747).
"(1) The Secretary of State may, where he considers it appropriate, arrange with any person or body (including a voluntary organisation) for that person or body to provide, or assist in providing, any service under this Act."
"(3) The powers conferred by this section may be exercised on such terms as may be agreed, including terms as to the making of payments by or to the Secretary of State..."
Since these powers have been delegated to health authorities under the 2001 Regulations, it follows that health authorities may arrange for private hospitals to provide health services under the 1977 Act, including the care and treatment of persons with mental disorders, pursuant to such contractual arrangements as they may make with such private hospitals. That is the route by which the hospital in the present case, which is not part of the National Health Service, came to admit and treat all, or at any rate most of, its patients. I use the words "at any rate most of" advisedly. There is no evidence of the breakdown between National Health Service and private patients in the hospital when the decision complained of was made, or at any other time for that matter. There are no restrictions on the hospital taking private patients, and for all I know, there may be a small number of private patients at the hospital. However, I was told that all the patients on the ward in question were National Health Service patients.
"The person registered shall, having regard to the size of the home and the number, age, sex and condition of the patients therein--
(a) provide adequate professional... staff...
(d) provide... adequate treatment facilities..."
- "public bodies which are obviously public authorities (and which might be described as standard public authorities);
- public authorities defined as such under the Human Rights Act by virtue of carrying out some public functions (which might be described as functional public authorities); and
- courts and tribunals"
In Donoghue's case itself, the court had to decide whether a housing association, to which a local housing authority had transferred a substantial proportion of its housing stock, was a functional public authority for the purpose of section 6 of the 1998 Act when it sought an order for possession against the tenant of one of the properties transferred. The court said, at  that there was no clear demarcation line between the acts of a body which were public and those which were private. In a borderline case, it was a matter of fact and degree. It was necessary to look at all the circumstances of the particular case, and to step back and look at the situation as a whole.
"not all the activities of private bodies (such as private companies) are subject only to private law. For example, the activities of a private body (such as a recently privatised company) may be governed by the standards of public law when its decisions are subject to duties conferred by statute or when, by virtue of the function it is performing, or possibly its dominant position in the market, it is under an implied duty to act in the public interest. A private company selected to run a prison, for example, although motivated by considerations of commercial profit, should be regarded, at least in relation to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the court, and the purpose and nature of their detention is a matter of public concern and interest."
The analogy between the hospital and a prison is an apt one. Even if the operation of a private prison is an activity which has become enmeshed in the activities of the public body which "subcontracted" its statutory obligations to the operators of the prison, the nature of the functions which even private prisons perform may well be enough to bring their decisions within the ambit of public law. Likewise, the need for the hospital's patients to receive care and treatment which may result in their living in the community again is a matter of public concern and interest. And those of the hospital's patients who are admitted to the hospital under section 3 of the 1983 Act (such as the claimant) are admitted by compulsion and not by choice (a fact which Stanley Burnton J rightly considered as critical in the Leonard Cheshire Foundation case, at para 51, in distinguishing between a prison and the residential homes run by the foundation).