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Cite as: [2000] EWHC Admin 363

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R V HAMMERSMITH HOSPITALS NHS TRUST EX PARTE REFFELL [2000] EWHC Admin 363 (28th June, 2000)

Case No: CO/1037/2000

IN THE SUPREME COURT OF JUDICATURE
(QUEEN'S BENCH DIVISION)
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
28th June 2000

B e f o r e :
LORD JUSTICE KENNEDY
and
MR JUSTICE JACKSON

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	R V HAMMERSMITH HOSPITALS NHS TRUST	Respondent

	EX PARTE REFFELL	Applicant

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Richard Gordon QC (instructed by Leigh, Day & Co for the applicant)
Philip Havers QC (instructed by Capsticks for the respondent)
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE KENNEDY:
Reasons for judgment
1. This matter came before us as an application for permission to apply for judicial review which was adjourned to this court by Hooper J on 22nd March 2000 with the intention that the court should proceed to hear the substantive application if permission be granted. We granted permission, and at the end of the hearing on 19th June 2000 we indicated that we were not prepared to grant the relief sought. We now give our reasons for that decision.
2. Facts
The background is simple and sad. The applicant is 23 years of age and he is a Nigerian. In 1999 he needed a kidney transplant, and his brother was prepared to act as donor but the operation was not then available in Nigeria. So Statoil, a Norwegian oil company by which the applicant's father was employed, agreed to pay the estimated costs of £35,000 of having the operation carried out at the Hammersmith Hospital in London. The applicant then travelled to London with his brother and their mother. The applicant had been on dialysis in Nigeria since October 1998, and when Dr Warrens, a consultant physician at the Hammersmith Hospital, saw the applicant at that hospital on 18th August 1999 the applicant was assessed as unfit to undergo the transplant operation which at that stage was planned for 14th September 1999. He suffered from recurrent fevers, probably caused initially by tuberculosis and investigations revealed a lesion of his brain stem and adjacent areas which could have been caused in a number of ways, such as abnormal blood flow, a brain tumour, or an infection such as tuberculosis. Because of the risks of attempting a biopsy of the lesion it was decided to defer the transplant operation for three months, and to then carry out a further scan.
During the autumn of 1999 there were several episodes of febrile illness which were successfully treated with antibiotics, but the appearances were sufficiently suggestive of tuberculosis to warrant a 9 month course of anti-tuberculosis treatment. That meant the operation could not be contemplated until the course of treatment was over, and, because of non-compliance, that course had to be re-started in February 2000.
Meanwhile, in January 2000 another, CT scan was performed, and the brain stem lesion appeared to have increased. Because of the lack of progress it was then considered appropriate to proceed with a brain biopsy despite the risks, and that is still the medical view. In February 2000 the applicant was observed to have inguinal lymphadenopathy, which makes it desirable for him to undergo a lymph node biopsy in advance of any brain biopsy. A lymph node biopsy could make a brain biopsy unnecessary, and could disclose a cancer which could delay transplantation possibly indefinitely.
Even if a brain biopsy is undertaken the result may be unhelpful or equivocal, and until the brain stem and other problems have been diagnosed and successfully treated there can be no transplant. One reason is that transplants involve immuno-supression, and if the applicant then developed a febrile illness he could well die. Even if all goes well it is clear from Dr Warrens supplementary statement of 8th June 2000 that no transplant can be considered before the summer of 2001, and since January 2000 the applicant has been urged by Dr Warrens and others, including Dr Bamgboye, his referring physician in Nigeria, to return there for treatment, but he is reluctant to do so.
Since his arrival in London the applicant has continued to receive dialysis. His original leave to enter for 6 months was extended in February 2000 until August 2000. The funds made available by Statoil covered the costs of dialysis and other treatment up to April 2000, but there is now a substantial deficit. Statoil is not prepared to make further funds available here, although it will cover costs in Nigeria, and the ongoing costs are such that the applicant and his family plainly cannot afford to pay. In March 2000 the applicant was told by the respondents that he could only continue to receive treatment if he paid in advance or produced an acceptable guarantee that the costs of treatment would be met, and that is what has provoked this application for judicial review. In fact, in accordance with an undertaking given to Hooper J the respondents have continued to provide dialysis pending the hearing of this application, and have always made it clear that they will provide such treatment as is necessary to stabilise the applicant for travel back to Nigeria.
3. Contentions
For the applicant Mr Gordon QC contends that -
(1) whatever may have been the status of the applicant originally he is no longer properly to be regarded as an "overseas visitor" for the purposes of the relevant regulations, and so he is entitled to be treated by the NHS, and in particular to go on receiving dialysis, free of charge.
(2) Alternatively, if he is an overseas visitor being provided with services forming part of the health service, then it is accepted that the respondent Trust must make and recover charges for those services but, Mr Gordon submits, the Trust has no right to require payment in advance, or the furnishing of an acceptable guarantee before the services are delivered.
(3) Even if, which Mr Gordon does not accept, the Trust has a discretion to proceed in that way, it has failed to consider properly how that discretion should be exercised, and-
(4) in the alternative, the decision to proceed in that way is irrational, having regard to the sums involved and the applicant's express desire not to return to Nigeria, a desire which, we are told, has now found expression in a further application for leave to remain in the United Kingdom.
For the respondents, Mr Havers QC, contends that -
(1) the applicant is and always has been an overseas visitor, and only relatively recently, after the commencement of these proceedings, has anyone suggested otherwise.
(2) Although the Trust is not obliged to seek payment in advance or a guarantee of payment, it has a discretion to do so which has been properly exercised, and accordingly there is no reason for this court to interfere.
4. Overseas visitor?
The NHS exists for the benefit of the people of England and Wales (See section 1 of the NHS Act 1977), and the services which the statute requires the Secretary of State to provide can be made available to patients who are prepared to pay, including those who normally are resident overseas. Regulation 2 of the NHS (Charges to Overseas Visitors) Regulations 1989, made pursuant to section 121 of the 1977 Act, makes it clear that where a Trust provides "an overseas visitor" with services forming part of the Health Service the Trust "shall make and recover" charges for the provision of those services. The term "overseas visitor" is defined in regulation 1(2) as "a person not ordinarily resident in the United Kingdom". In R v Barnet LBC ex parte Shah [1983] 2 AC 309 the House of Lords considered how the words "ordinarily resident" should be interpreted in relation to students, who having entered the United Kingdom and completed one course of study, were seeking local authority funding for further study. At 343H Lord Scarman said 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 apart of the regular order of his life for the time being, whether of short or long duration."
I have no doubt that someone who comes to this country for medical treatment or for the good of his health may become or propose to become ordinarily resident, just as that possibility was available to the students in Shah. But, bearing in mind that this challenge relates to a decision made in March 2000, it seems to me that the evidence, to which I have briefly referred, was overwhelmingly in favour of the conclusion that the applicant was, and had always been, from the moment of his arrival in the United Kingdom, an overseas visitor for the purpose of the 1989 Regulations.
Our attention has been invited to paragraph 6 of the May 1999 edition of the NHS Patients Guide for Overseas Visitors, part of which reads -
"A person living here for a settled purpose for not less than 6 months will be accepted as ordinarily resident and therefore not liable to charges under the Regulations."
Mr Gordon submits that the applicant has been living here since August 1999 for the settled purpose of obtaining medical treatment culminating in a transplant. Similarly the NHS Manual of Guidance of Treatment of Overseas Visitors says in paragraph 1.2 -
"A person should be accepted as `ordinarily resident' if he is lawfully living in the United Kingdom voluntarily and for settled purposes as part of the regular order of his life for the time being. He must have an identifiable purpose for his residence here and that purpose must have a sufficient degree of continuity to be properly described as `settled'. This will depend upon the facts of each individual case but we advise that a person who is intending to stay here for less than six months would not usually be regarded as ordinarily resident and eligible for free treatment ........"
Neither of those documents seems to me to be of any real assistance in the context of this case. Their object is to assist patients and staff to decide who is entitled to be treated free of charge because they are ordinarily resident. A person who comes here and is admitted to the United Kingdom for the purpose of obtaining highly specialised treatment for which he proposes to and does in fact pay is plainly not, as it seems to me, the sort of person whom those who drafted the Guide and the Guidance had in mind.
5. Right to require payment in advance
Mr Gordon accepts that if, as I would hold, the Trust in March 2000 was right to conclude that the applicant was an overseas visitor then it was required by Regulation 2 of the 1989 Regulations to "make and recover" charges for the services which it provided. It had no discretion not to charge, and its obligation was not only to charge but also to recover.
I accept, as Mr Gordon points out, that the 1977 Act in section 1(2) starts from the position that services provided in accordance with the Act shall be provided free of charge.
"The services so provided shall 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"

Mr Gordon's basic proposition, as I understand it, really amounts to this - that since no enactment expressly authorises the Trust to seek payment or a guarantee in advance of treatment it cannot do so. Even if it knows that an overseas visitor applying for treatment will not be able to pay it must provide the treatment. In my judgment that approach fails to give any sufficient weight either to the structure of the legislation as a whole, or to the wording of the relevant section and the relevant regulation.
As to the structure of the legislation as a whole, it is to my mind clear, as Mr Havers submits, that, with the exception of emergency treatment and other special cases (such as where visitors need to be treated in order to protect the resident population) services are made available to overseas visitors as a commercial operation, not as a humanitarian gesture. That is clear, for example, from section 65 of the Act and from Regulation 3(a) of the 1989 Regulations, which exempts an overseas visitor from charges at a hospital Accident and Emergency or Casualty Department, but requires him to pay as soon as he is accepted as an in-patient, and however acute the condition or deserving the patient the Trust has no discretion to waive that obligation to pay. This commercial approach is, of course, tempered to some extent in operation so as not to oppress and so as to enable medical and nursing staff to comply with what they would regard as their professional obligations. Thus in paragraph 4 of the Manual of Guidance it is said that where enquiries are being made as to whether a patient should be charged, nothing should be done which might involve the harassment of a seriously ill patient, and in paragraph 4.3 it is said that principles adopted must accord with normal principles of patient care. No doubt, but that does not detract from the underlying commercial nature of the arrangement, and in reality it is difficult to see how it could be otherwise. The NHS has enough trouble trying to raise funds to treat those whom it must treat, without volunteering to treat others as well at a loss.
Turning to the wording of Regulation 2 of the 1989 Regulations I note the tenses of the verbs used - where a Trust "provides" services, having made appropriate enquiries as to chargeability it "shall make and recover" charges. Mr Gordon relies on the tenses to support his submission that the right to charge follows but cannot precede the provision of services. He accepts that as suggested in paragraph 5.4 of the Manual of Guidance it is good practice to seek a deposit equivalent to the full cost of the hospital charges which will be payable, and that patients who cannot pay in advance should be asked to give an undertaking to pay (which the applicant's mother has given) but if neither payment in advance nor an acceptable guarantee can be produced then, as I understand Mr Gordon's submission, his case is that necessary but non-emergency treatment must be given to overseas visitors even in circumstances where the Trust concerned knows that the patient will not be able to pay. I disagree. To my mind when Parliament imposed on the Trust the express obligation to recover charges it must be taken to have given the Trust the ordinary means to discharge that obligation including the right to require payment in advance or an acceptable guarantee of payment from those who seem unlikely to be able to pay.
6. Discretion not to seek payment in advance.
Mr Gordon submits that even if payment or an acceptable guarantee can be required there must be a discretion not to require it, and that the existence of that discretion was not recognised nor was it properly exercised in this case. He invites our attention in particular to the Trust's letter of the 18th May 2000, written about two months after the decision challenged in these proceedings. In that letter the writer says -
"We consider, and have been so advised, that we have no discretion but must charge for dialysis to be provided to overseas visitors. We are entitled to require either prior payment or a suitable guarantee of payment in advance of providing treatment."
I can find nothing in that letter or elsewhere to suggest that the Trust did not recognise that it had the discretion not to require a guarantee or payment in advance, a discretion which Mr Havers concedes does exist.
As to the exercise of the discretion Mr Gordon points to Regulation 4(b) of the 1989 Regulations which provides that no charge shall be made for services provided to an overseas visitor -
"Who has resided in the United Kingdom for the period of not less than one year immediately preceding the time when the services are provided, whether or not immediately prior to the completion of one year's residence as aforesaid, charges under these Regulations may have been made in respect of services provided as part of the same course of treatment."
That, it is agreed, means that as from mid August 2000, if the applicant is still in the United Kingdom, no charge can be made and, Mr Gordon submits, the sum at issue is therefore relatively small - the cost of routine dialysis between March and August 2000, reduced to the extent that Statoil has paid. To that there can be a number of responses - first, the sum is not trifling. The average weekly cost of dialysis is £285. Secondly, that makes no allowance for any other form of treatment the applicant may have required or may yet require. Thirdly, the decision under review was taken at a time, when it was not known, and it is still not known whether the applicant will be in the United Kingdom, and if so whether he will be entitled to be in the United Kingdom, in August 2000. Fourthly, the treatment the applicant now requires is available in Nigeria where Dr Bamgboye is ready to welcome him back, and there is no immediate prospect of the applicant being fit to undergo transplant surgery, either here or elsewhere. Of course the applicant is entitled to his views as to the quality of the care available in Nigeria, but those views cannot render unreasonable the Trust's decision not to go on providing routine medical care at a time when all the indications are that if proper charges are raised in respect of that care they will never be paid. Fifthly, the Trust has to try to be even-handed in its treatment of patients. If it does not require payment in advance of the applicant, or an effective guarantee, it in effect waives payment in his case. He has no discernible means to pay in the United Kingdom, so the Trust can derive no real benefit from section 122(1) of the 1977 Act which enables charges to be recovered summarily as a civil debt. And if he eventually returns to Nigeria without paying all of the charges which may have been raised there would obviously be serious problems about attempting to recover. Accordingly in my judgment the decision of the Trust to require payment in advance cannot be regarded as irrational. The Trust was entitled to exercise its discretion as it did, and the applicant having failed to establish any ground for relief his application for judicial review must fail.
Mr Justice Jackson: I agree.
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LORD JUSTICE KENNEDY: At the conclusion of the hearing in this matter, we indicated that the application for judicial review was to fail. We have now handed down our reasons for that decision.

Mr Havers, we are indebted to you for the two small corrections. They will appear in the final edition.

MR HAVERS: I know the copies of the draft judgment were handed out to the press. Would it be helpful if I indicated briefly what the corrections were?

LORD JUSTICE KENNEDY: Yes. Top of page 3, line 2, "could" should read "should". Top of page 6, main paragraph 6, top line, between "even" and "payment" there should be an "if". Thank you very much.

MR HAVERS: So far as costs are concerned, I do seek an order that the Applicant pay the Respondents' costs not to be enforced without the permission of the court. So as not to trouble your Lordships with any summary assessment of the Respondents' costs, can I suggest that your Lordships add to that order: "To be assessed summarily if and when permission to enforce is sought"?

LORD JUSTICE KENNEDY: Yes. Mr Gordon?

MR GORDON: There is no opposition to that. Having said that, I would submit that it is a very, very academic order and the court may feel that, in those particular circumstances, no order would be preferable.

LORD JUSTICE KENNEDY: I think, on the whole, that subject to what Jackson J may think, Mr Havers is entitled to his order. It does not do you any damage at this stage but he is entitled to protect the position.

MR JUSTICE JACKSON: I agree.

LORD JUSTICE KENNEDY: There will be an order accordingly, i.e. the Respondents to have their costs but that order not to be enforced without leave of the court. The costs to be assessed summarily if and when permission is granted.

MR GORDON: My Lord, I have an application for permission to appeal. It is against the background of the general test in the practice direction, in paragraph 2.8. The general rule is that permission will be given unless an appeal would have no real prospect of success.

What we say particularly is that it is issue 5 at paragraph 5 in the judgment. I appreciate that the court has ruled against on us on the question of construction. It is actually rather an important point for the NHS, particularly in the light of the guidance, which is pretty equivocal, you might think.

My Lords, that is the principal basis on which permission is sought. It is not a fanciful prospect. There is the prospect of the Court of Appeal reaching a different conclusion and, in the light of the general test, I ask that your Lordships grant that permission.

LORD JUSTICE KENNEDY: Thank you very much. Is there anything you want to say, Mr Havers?

MR HAVERS: I will resist the application. I do not think it is helpful to go further than to submit that the appeal would not have a real prospect of success. It may be helpful to your Lordship's to try to develop that submission.

May I add to it the following points, shortly. Firstly, any appeal would inevitably involve the Trust in further significant expense which it will never recover because the Trust has already been invited to give an undertaking, in the event that your Lordships were to grant permission, to continue treatment. Secondly, if permission were sought and the applicant failed on the appeal, the Trust will thus incur yet further significant costs which it will never recover. Thirdly, there is no question of prejudice to the applicant's health because if he returns to Nigeria, as your Lordships know, treatment is available for him there. Lastly, I hear what my learned friend says, but there must, in my submission, be a mixed motive involved in the application for permission to appeal because, as your Lordships know, if the applicant can manage to remain in this country until August, by then he will have complied with the year's requirement and be entitled to treatment free.

So, my Lords, on those additional grounds also, I would invite your Lordships to reject the application.

LORD JUSTICE KENNEDY: Thank you. We have considered the application for leave to appeal. We are of the opinion that there are no reasonable prospects of success on appeal and, accordingly, we are not prepared to grant leave. The reasons for that conclusion, obviously, are those set out in the judgment.

MR GORDON: In case I have to ask for it, may I have an order for legal aid assessment?

LORD JUSTICE KENNEDY: You may have legal aid assessment if you need it.

Thank you very much.