COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE MITTING
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON LORD JUSTICE LLOYD
THE RT HON LORD JUSTICE RIMER
| R on the application of YA
|- and -
|Secretary of State for Health
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Mr Nigel Giffin Q.C. and Mr Stephen Knafler (instructed by Pierce Glynn) for the respondent
Hearing dates: 17th and 18th November 2009
Crown Copyright ©
Lord Justice Ward:
The troublesome questions arising on this appeal
The parlous predicament of Mr A giving rise to his claim for judicial review
The National Health Service Scheme
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. "
"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. "
""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 "
"2. Making and recovery of charges
(1) Where an Authority or NHS Trust or NHS foundation trust, or a Primary Care Trust provides an overseas visitor with services forming part of the health service, that Authority or NHS Trust or NHS foundation trust, or a Primary Care Trust, having determined, by means of such enquiries as it is satisfied are reasonable in all the circumstances, including the state of health of that overseas visitor, that the case is not one in which these Regulations provide for no charge to be made, shall make and recover from the person liable under regulation 7 charges for the provision of those services. "
The person liable under regulation 7 is usually the overseas visitor in respect of whom the services are provided.
"4. Overseas visitors exempt from charges
(1) No charge shall be made in respect of any services forming part of the health service provided for an overseas visitor,
(b) who has resided lawfully in the United Kingdom for the period of not less than one year immediately preceding the time when the services are provided unless this period of residence followed the grant of leave to enter the United Kingdom for the purpose of undergoing private medical treatment or the determination under regulation 6A; or
(c) who has been accepted as a refugee in the United Kingdom, or who has made a formal application for leave to stay as a refugee in the United Kingdom which has not yet been determined; or "
"The National Health Service is first and foremost for the benefit of people who live in the United Kingdom.
With the changes to the charging Regulations, and their proper enforcement, we can ensure that, as far as possible, NHS resources are being used to meet the health care needs of people who live in the UK, not those who don't."
The Guidance begins with this "Important Note":
"This guidance seeks to provide as much help and advice as possible on the implementation of the Regulations 1989 (as amended). However, it cannot cover everything and is not intended to be a substitute for the Regulations themselves which contain the legal provisions. Trusts are advised to seek their own legal advice on the extent of their obligations when necessary."
"What are your responsibilities?
3.1 All trusts have a legal obligation to:
- ensure that patients who are not ordinarily resident in the United Kingdom are identified;
- assess liability for charges in accordance with the charging Regulations;
- charge those liable to pay in accordance with the Regulations (see Chapter 8).
In the context of charging overseas visitors, when to charge can be considered in terms of the urgency of the treatment needed:
immediately necessary treatment if the opinion of the clinicians treating the patient is that treatment is immediately necessary then it must not be delayed or withheld while the patient's chargeable status is being established. There is no exemption from charges for "emergency" treatment (other than that given in an accident and emergency department - see para 6.7(a)) but trusts should always provide immediately necessary treatment whether or not the patient has been informed of, or agreed to pay, charges. Not to do so could be in breach of the Human Rights Act 1998. While it is a matter of clinical judgement whether treatment is immediately necessary, this should not be construed simply as meaning that the treatment is clinically appropriate, as there may be some room for discretion about the extent of treatment and the time at which it is given, in some cases allowing the visitor time to return home for treatment rather than incurring NHS charges. When providing immediately necessary treatment clinicians should be asked to complete an advice from Doctors or Dentists form at Appendix 1;
urgent treatment where the treatment is, in a clinical opinion, not immediately necessary, but cannot wait until the patient returns home. Patients should be booked in for treatment, but the trust should use the intervening period to establish the patient's chargeable status. Wherever possible, if the patient is chargeable, trusts are strongly advised to seek deposits equivalent to the estimated full cost of treatment in advance of providing any treatment. Any surplus which is paid can be returned to the patient on completion of treatment. When providing urgent treatment clinicians should be asked to complete an advice from Doctors or Dentists form at Appendix 1;
non-urgent treatment routine elective treatment which could in fact wait until the patient returned home. The patient's chargeable status should be established as soon as possible after first referral to the hospital. Where the patient is chargeable, the trust should not initiate treatment processes, e.g. by putting the patient on a waiting list, until a deposit equivalent to the estimated full cost of treatment has been obtained. Any surplus which is paid can be returned to the patient on completion of treatment. This is not refusing to provide treatment, it is requiring payment conditions to be met in accordance with the charging Regulations before treatment can commence."
"4.5 Anyone who has lived lawfully in the UK for at least 12 months immediately preceding treatment is exempt from charges, so the baseline question continues to be based on this and is:
"Where have you lived for the last 12 months?"
However, because the exemptions now expressly apply only to those living here lawfully, you need to follow this first question with another:
"Can you show that you have the right to live here?" "
5.4 An overseas visitor is defined in the Regulations as a person not ordinarily resident in the UK. "Ordinarily resident" is not defined in the NHS Act 1977. The concept was considered by the House of Lords and although the case being considered was concerned with the meaning of ordinary residence in the context of the Education Acts the decision is generally recognised as having a wider application. The House of Lords interpretation should, therefore, be used to help decide if a person can be considered ordinarily resident for the purposes of the NHS Act 1977 and the overseas visitors charging Regulations.
5.5 In order to take the House of Lords judgement into account, when assessing the residence status of a person seeking free NHS services, trusts will need to consider whether they are:
living lawfully in the United Kingdom voluntarily and for settled purposes as part of the regular order of their life for the time being, whether they have an identifiable purpose for their residence here and whether that purpose has a sufficient degree of continuity to be properly described as "settled".
5.6 Trusts need to make a judgement as to whether a patient is ordinarily resident in the light of the circumstances of that individual patient. But there are several elements which all need to be satisfied. For example, a person who has the right of abode or who has been given leave to remain and has an identifiable purpose for their visit may not meet the "settled" criterion if they are only here for a few weeks. Alternatively, someone may be here legally, for several months, but with no identifiable purpose. But it is for the trust to decide whether the criteria are met. There is no minimum period of residence that confers ordinarily resident status. In the past the Department of Health has suggested that someone who has been here for less than 6 months is less likely to meet the "settled" criterion but it is important to realise that this is only a guideline, not a deadline.
5.7 The question of ordinarily resident status is the first and most fundamental issue to resolve, because if a patient is classed as ordinarily resident then the charging Regulations do not come into play, even if the patient has only been in the UK for a few days or weeks. The Secretary of State has no powers to charge for NHS treatment someone who is ordinarily resident in the UK. "
Paragraph 5.13 provides that the onus is on the patient to provide whatever evidence he or she thinks is appropriate to support their claim and 5.15 provides that there may be occasions where patients produce entry clearance documents that are not familiar to Overseas Visitors Managers. In these cases the Immigration and Nationality Directorate (IND) (now the Border and Immigration Agency) have provided a general telephone helpline which may provide the trust with advice on interpreting different types of entry visas and visa stamps.
"Where an overseas visitor has been living in the UK for more than 12 months and is receiving a course of treatment free of charge and it is subsequently established that their residence was not lawful (eg an illegal immigrant), or was lawful but their status has changed (eg an asylum seeker whose application has finally failed, including all appeals), they cannot be charged for the course of treatment they were receiving at the time their status was determined. That remains free of charge until completed. They must, however, be charged for any new course of treatment.
Examples of evidence
- Proof lawfully in UK e.g. has right of abode, leave to enter documents issued by HO, visitors visa/work permit/student visa etc is still valid. "
"6.24 The fact that the exemption for asylum seekers only lasts until their claim is determined means the trust should be prepared to check that the application is still on-going at intervals if treatment is being provided over a long period. If the claim is finally rejected (including appeals) before the patient has been in the UK for 12 months, they cannot be charged for a course of treatment they were receiving at the time their status was determined. That remains free of charge till completed. They must, however, be charged for any new course of treatment. If that is routine elective treatment, then payment should be handled in the same way as for anyone else seeking non-urgent treatment, i.e. payment should be obtained before treatment begins (see para 3.1). Once they have completed 12 months residence they do not become exempt from charges." (The emphasis is added by me.)
The immigration system
"1(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act
(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act
2(1) A person is under this Act to have the right of abode in the United Kingdom if
(a) he is a British citizen; or
(b) he is a Commonwealth citizen who - "
"(3)(1) Except as otherwise provided by or under this Act, where a person is not a British citizen
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely
(i) a condition restricting his employment or occupation in the United Kingdom;
(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds;
(iii) a condition requiring him to register with the police;
(iv) a condition requiring him to report to an immigration officer
(v) a condition about residence.
(4)(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom shall be exercised by the Secretary of State "
"11(1) A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act . . ."
"21(1) A person liable to detention or detained under paragraph 16 may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention, but this shall not prejudice a later exercise of the power to detain him.
(2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to his residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing to an immigration officer.
(2A) The provisions that may be included in restrictions as to residence imposed under sub-paragraph (2) include provisions of such a description as may be prescribed by regulations
(2B) The regulations may, among other things, provide for the inclusion of provisions
(a) prohibiting residence in one or more particular areas;
(b) requiring the person concerned to reside in accommodation provided under section 4 of the Immigration and Asylum Act 1999 "
"It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the Islands at a time when he is there in breach of the immigration laws."
Mitting J's judgment
"25. I can see no reason why a person lawfully in the United Kingdom, except for specific statutory purposes, should not become ordinarily resident by dint of his voluntary wish to settle, coupled with residence for a significant period. Such a person fulfills Lord Scarman's test. A person whose claim to asylum (which might carry with it a wish to return to his native territory when the threat to him has lessened or gone), has failed, but who refuses to leave voluntarily is likely to be determined to remain in the United Kingdom, if he can. Significant residence with that purpose is likely to provide proof of ordinary residence."
On the other hand, the asylum seeker who does not claim asylum at port of entry could not become ordinarily resident because he entered in breach of immigration law.
"21. if he is "lawfully present" for the purpose of the Regulations considered in Szoma, I can see no good or principled reason why he should not be lawfully in the United Kingdom for the purposes of determining whether or not he is ordinarily resident here."
The issues arising on the appeal and cross-appeal
(1) Can a failed asylum seeker be ordinarily resident in the United Kingdom? If so, the Guidance may be unlawful.
(2) Was the appellant lawfully resident in the United Kingdom for the period of not less than one year immediately preceding the time when health services were provided to him? If so, the Guidance may again need clarification.
(3) Does a National Health Service Trust have any discretion to withhold treatment from a failed asylum seeker? If so, this may be another area where the Guidance needs to be clarified.
Discussion of the first two issues
"All five students are immigrants. None of them has the right of abode in the United Kingdom. None of them is a national of a member state of the European Communities. All needed leave to enter and to remain here: section 3(1), Immigration Act 1971. Four of them entered as students with limited leave; one, Nilish Shah, entered with his parents for settlement and obtained indefinite leave. The limited leave included a condition that on completion of his studies the student would depart from the country - though, of course, it would be open to him to apply for an extension, in which event the Secretary of State could grant a limited or unlimited extension or refuse the application."
"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.
There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence (even though in a tax case the Crown may be able to do so). There is, indeed, express provision to this effect in the [Immigration] Act of 1971, section 33(2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully.
There are two, and no more than two, respects in which the mind of the "propositus" is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is.
And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."
"It is recognised that the only relevance of the [Immigration] Act  is that it established immigration control, which may give rise to relevant facts, but no more, in determining whether in truth a man is ordinarily resident in the United Kingdom."
At p. 348 he said:
"Both courts also agreed in attaching decisive importance to what the Divisional Court called "the immigration status" of the students. "Immigration status," unless it be that of one who has no right to be here, in which event presence in the United Kingdom is unlawful, means no more than the terms of a person's leave to enter as stamped upon his passport. This may or may not be a guide to a person's intention in establishing a residence in this country: it certainly cannot be the decisive test, as in effect the courts below have treated it. Moreover, in the context with which these appeals are concerned, i.e. past residence, intention or expectations for the future are not critical: what matters is the course of living over the past three years."
He added at p. 349:
"The terms of an immigrant student's leave to enter and remain here may or may not throw light on the question: it will, however, be of little weight when put into the balance against the fact of continued residence over the prescribed period - unless the residence is itself a breach of the terms of his leave, in which event his residence, being unlawful, could not be ordinary."
"31. It is quite clear that Lord Scarman regarded the question he was answering as one of statutory construction. On the meaning of 'ordinary residence' he relied upon the earlier tax cases. Yet it is also quite clear that the legality of a person's residence is completely irrelevant for tax purposes. A person who has taxable income or assets here is liable to United Kingdom tax irrespective of his immigration status.
33. It is common ground that habitual residence and ordinary residence are interchangeable concepts: see Ikimi v Ikimi  EWCA Civ 873;  Fam 72. The question is whether the word 'lawfully' should be implied into section 5(2) of the [Domicile and Matrimonial Proceedings] 1973 Act. I see no reason to do so. The purpose of the 1973 Act was to provide an answer to the question "when is the connection with this country of the parties and their marriage sufficiently close to make it desirable that our courts should have jurisdiction to dissolve the marriage?"
36. I conclude, therefore, that residence for the purpose of section 5(2) of the 1973 Act need not be lawful residence. The question of whether the residence is habitual is a factual one which should be answered by applying the test, derived from the 1928 tax cases, laid down by Lord Scarman in ex p. Nilish Shah  2 AC 309. It is possible that the legality of a person's residence here might be relevant to the factual question of whether that residence is 'habitual'. A person who was on the run after a deportation order or removal directions might find it hard to establish a habitual residence here. But such cases will be rare, compared with the large numbers of people who have remained here leading perfectly ordinary lives here for long periods, despite having no permission to do so. There will, however, be other statutory provisions, in particular those conferring entitlement to some benefit from the state, where it would be proper to imply a requirement that the residence be lawful."
"Is a person temporarily admitted to the United Kingdom under the written authority of an immigration officer pursuant to paragraph 21 of Schedule 2 to the Immigration Act 1971 (the 1971 Act) "lawfully present in the United Kingdom" within the meaning of paragraph 4 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 ?"
As he pointed out, the appeal concerned not (or at least not directly) the appellant's immigration status but rather his entitlement to a particular non-contributory benefit, income support. Lord Brown explained the appellant's position:
"9. Whilst previously the appellant had been entitled to income support simply by virtue of his presence in the United Kingdom, the 1999 Act changed that position. Section 115(1) of the Act, under the heading "Exclusion from Benefits", provided that no one is entitled to income support and a number of other specified security benefits "while he is a person to whom this section applies." Subsection (3) provides that "This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed." Subsection (9) provides:
"'A person subject to immigration control' means a person who is not a national of an EEA state and who - (a) requires leave to enter or remain in the United Kingdom but does not have it . . ."
10. The 2000 Regulations prescribe those who, pursuant to section 115 (3), are not excluded from specified benefits notwithstanding that they are subject to immigration control. The various categories are described in Part 1 of the Schedule to the Regulations and it is paragraph 4 which is critical for present purposes:
"A person who is a national of a state which has ratified the European Convention on Social and Medical Assistance (done in Paris on 11 December 1953) [ECSMA] or a state which has ratified the Council of Europe Social Charter [CESC] (signed in Turin on 18 October 1961) and who is lawfully present in the United Kingdom.""
"Undoubtedly he was present, such presence being pursuant to the written authority of an immigration officer expressly provided for by the legislation; and he had committed no breach of the law. Small wonder that the IND's Asylum Policy Instructions provide that "applicants who have been granted temporary admission are lawfully present in the United Kingdom, provided they adhere to the conditions attached to the grant of temporary admission"."
"25. In my opinion, however, section 11's purpose is not to safeguard the person admitted from prosecution for unlawful entry but rather to exclude him from the rights (in particular the right to seek an extension of leave) given to those granted leave to enter. Even assuming that section 11's deemed non-entry "for purposes of this Act" would otherwise be capable of affecting the construction of the 1999 Act and the 2000 Regulations (as legislation in pari materia), it would in my judgment be quite wrong to carry the fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all."
"26. To my mind the only way the respondent could succeed in these proceedings would be to make good his core argument, that the word "lawfully" in this context means more than merely not unlawfully; rather it should be understood to connote the requirement for some positive legal underpinning.
28. I would reject this argument. There is to my mind no possible reason why paragraph 4 should be construed as requiring more by way of positive legal authorisation for someone's presence in the United Kingdom than that they are at large here pursuant to the express written authority of an immigration officer provided for by statute."
"29. For one thing those treaties make a distinction (not recognised in our law) between lawful presence and lawful residence, certain benefits having to be made available only to those lawfully resident in the state."
"19. It seems to me plain that UK law makes a distinction between a right to reside, which is conferred only on British citizens, certain Commonwealth citizens, qualified persons as defined by the Immigration (European Economic Area) Regulations 2000 and the various additional categories mentioned in the definition of "persons from abroad" such as refugees, those with indefinite leave to remain and those to whom exceptional leave to remain has been granted, on the one hand, and any lesser status, in particular that of an EEA national who is in this country having entered lawfully, has committed no breach of immigration law, but is not a qualified person and therefore does not enjoy the benefit of regulation 14 which confers a "right to reside". Logically, if an EEA national has to be a qualified person to have conferred upon him a right to reside, it is not a proper reading of a reference to "right to reside" under UK law to extend it to an EEA national who is not a qualified person.
25. it seems to me that the Appellants, though lawfully present in this country, did not have a right to reside, under UK law, at the time relevant to the present appeals, because they were not qualified persons."
Dealing with Szoma my Lord said:
"38. I note that, at paragraph 29 of his speech in Szoma's case, Lord Brown spoke of the distinction made in the Convention between lawful presence and lawful residence as being a distinction "not recognised in our law". He did not have to consider the distinction between a right to reside and lawful presence without any such right, a distinction which plainly is made by the 2000 regulations."
Counsel's submissions on the first two issues
"A person arriving in the United Kingdom who claims asylum at the port of arrival is normally temporarily admitted to the United Kingdom. Accordingly, for the purposes of s. 11 of and para 7 of Sch. 3 to the 2002 Act, he is deemed not to have entered the United Kingdom, by virtue of s. 11(1) of the 1971 Act. If the application for asylum is unsuccessful, temporary admission is not discontinued at that point nor is it discontinued when removal directions are set. If the person is detained pending removal, temporary admission ceases at that point. . Consequently, a person who claims asylum at the point of arrival in the United Kingdom, who is granted temporary admission and whose claim for asylum is later determined against him will not, at that point, without more, be in the United Kingdom in breach of the immigration laws within the meaning of para 7(a). By contrast, a person who has applied for asylum only after entering the United Kingdom is likely to be a person who is in the United Kingdom in breach of the immigration laws within the meaning of para 7(a). For example, a person who has entered the United Kingdom unlawfully and has later applied for asylum will normally be given temporary release. He will be a person in the United Kingdom in breach of the immigration laws within the meaning of para 7(a). In particular he will not be entitled to invoke the deeming provision in section 11(1) of the 1971 Act because he has otherwise entered the United Kingdom."
It is clear from that citation that the case concerned failed asylum seekers requesting support from local authorities so it is not directly relevant here.
"I think the converse to 'ordinarily' is 'extraordinarily' and that part of the regular order of a man's life, adopted voluntarily and for settled purposes, is not 'extraordinary'."
In an observation in Shah endorsed by Lord Scarman, Lord Denning M.R. said in the Court of Appeal that:
"The words 'ordinarily resident' mean that the person must be habitually and normally resident here "
The second issue: lawful residence
The third issue: what discretion does a National Health Service Trust have to withhold treatment or to provide treatment for a failed asylum seeker?
"4. It fails to make clear that urgent treatment may not in any circumstances be withheld altogether by reason of a failure to pay for such treatment.
5. It suggests that NHS Trusts are in certain circumstances entitled to withhold treatment in respect of persons subject to charging who have not paid or made arrangements for payment, even where such persons are unable to pay for such treatment and are currently unable to return to their country of origin."
"25. If the Hammersmith are required to charge and recover, it must by clear implication be within their power to seek deposits, as they did, prior to the treatment; and that it must be within their power to do so even during the continuation of the treatment. It follows, in my view that the Hammersmith could treat without seeking payments in advance but it has a discretion as to whether it should do so.
34. It may well be that if circumstances were that refusal to treat was going to lead inevitably to an emergency that the Hammersmith was going to have to meet free of charge, the Hammersmith could well in its discretion say, both on humanitarian grounds and on the basis that to seek now save expense later, that treatment should be given without insistence on the deposit or advance payment."
Simon Brown L.J. held:
"42. the hospital Trust, is statutorily bound, in the light of the applicant's immigration status as an overseas visitor within the meaning of the regulations, to exercise a discretion whether or not to treat him, given that he can neither pay, nor give any realistic assurance of payment for such treatment."
"trusts need to treat patients in need of immediately necessary care regardless of their ability to pay. This may be because their condition is life-threatening, or because if treatment is not given immediately it will become life-threatening, or because permanent serious damage will be caused by any delay Where immediately necessary treatment takes place and the Trust knows that payment is unlikely, treatment should be limited to that which is clinically necessary to enable the patient to return to their own country. This should not normally include routine treatment unless it is necessary to prevent a life-threatening situation. Any charge for such treatment will stand, but if it proves to be irrecoverable, then it should be written off."
This is clear enough in so far as it advises that certain treatment should be given irrespective of the ability to pay for it but it leaves unclear what, if any, investigation should be made as to when the patient is likely to return to his own country so as to be able to decide what limits should be placed on the treatment.
Lord Justice Lloyd:
Lord Justice Rimer: