CHAPTER 18
National Health Service provision
18.2NHS bodies and their roles 18.7How health care needs are assessed and met 18.12Charging, NHS continuing healthcare and persons subject to immigration control 18.13The core NHS provisions 18.14English NHS Constitution/NHS Wales Core Principles 18.18Responsibility disputes between health bodies 18.19Framework for NHS continuing healthcare 18.23.1Local authorities’ public health responsibilities 18.23.6Health care and persons subject to immigration control Cases
Health care provision
18.27R v Cambridge DHA ex p B [1995] 1 WLR 898, CA A court cannot realistically quash an NHS resource-allocation decision head-on, on rationality grounds, no matter how tragic the case
18.28R v North Derbyshire Health Authority ex p Fisher (1997–8) 1 CCLR 150, QBD Acting contrary to guidance because of a simple disagreement with the guidance is tantamount to failing to take it into account
18.29Passannante v Italy (1998) Application no 32647/96, (2002) 5 CCLR 340 A delay in providing healthcare to which a person was entitled by virtue of contributions might raise an issue under Article 8 ECHR if there was a serious risk to health
18.30R v North West Lancashire Health Authority ex p A, D and G (1999) 2 CCLR 419, CA A refusal to provide a healthcare service was unlawful where the health authority had proceeded on a basis that was contrary to its own policy
18.31Sentges v The Netherlands Application no 27677/02, (2004) 7 CCLR 400 The margin of appreciation was so wide in medical cases, especially in relation to the allocation of scarce healthcare resources, that it could not be said that the refusal to supply a robotic arm, in the context of the provision of other services, was incompatible with Article 8 ECHR
18.32Glass v United Kingdom Application no 61827/00, (2005) 8 CCLR 16 The imposition of treatment on a child in defiance of his mother’s interests and without seeking Court relief was incompatible with Article 8 ECHR
18.33van Kuck v Germany Application no 35968/97, (2005) 8 CCLR 121 It was incompatible with Articles 6 and 8 ECHR to decline to fund gender re-assignment surgery on the basis of an incorrect understanding of the medical evidence
18.34Pentiacova v Moldova Application no 14462/03, (2005) 40 EHRR SE23 It was not a breach of the ECHR radically to reduce haemodialysis provision, notwithstanding the suffering occasioned
18.35R (Watts) v Bedford PCT [2006] QB 667 Faced with unacceptable delay a patient was entitled to recover the cost of speedier medical treatment in another member state
18.36R (Gunter) v South Western Staffordshire PCT [2005] EWHC 1894 (Admin), (2006) 9 CCLR 121 The NHS decision to refuse services was vitiated by its failure to appreciate that it could fund a user independent trust and the importance of the patient’s home life
18.37R (Ann Marie Rogers) v Swindon NHS PCT [2006] EWCA Civ 392, (2006) 9 CCLR 451 Unless resources were problematic, it was irrational to accord patients different entitlement on any other than clinical grounds
18.38Tysiac v Poland Application no 5410/03, (2007) 45 EHRR 42 The absence of clear procedures for determining eligibility for an abortion and resolving disputes was incompatible with Article 8 ECHR
18.39R (Otley) v Barking and Dagenham NHS PCT [2007] EWHC 1927 (Admin), (2007) 10 CCLR 628 The reasons for declining to fund cancer treatment, in this case, were irrational
18.40R (Colin Ross) v West Sussex PCT [2008] NLJR 1297, (2008) 11 CCLR 767 The reasons for declining cancer treatment manifested a failure properly to understand relevant matters
18.41R (Harrison and Garnham) v Secretary of State for Health [2009] EWHC 574 (Admin), (2009) 12 CCLR 355 The NHS was not entitled to make direct payments
18.42R (Booker) v NHS Oldham [2010] EWHC 2593 (Admin), (2011) 14 CCLR 315 The NHS was required to provide healthcare even for treatment covered by a personal injury award of damages designed to enable private healthcare to be purchased
18.43MAK and RK v United Kingdom Application nos 45901/05 and 40146/06, (2010) 13 CCLR 241 Disproportionate actions by a hospital doctor, resulting in his erroneously concluding that parents had abused their daughter, were incompatible with Article 8 ECHR
18.44R (Condliff) v North Staffordshire PCT [2011] EWCA Civ 910, (2011) 14 CCLR 656 The PCT was entitled to take into account only clinical factors and to disregard the social factors said to justify exceptional treatment
18.45Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, (2012) 15 CCLR 13 Hospitals are under a duty imposed by Article 2 ECHR to protect both detained and voluntary mental patients against a real and immediate risk of suicide
18.46R (JF) v NHS Sheffield Clinical Commissioning Group [2014] EWHC 1345 (Admin) It had not been unlawful to provide ward monitoring and supervision to a person who received 1:1 supervision 24 hours a day whilst at home, under NHS continuing healthcare
18.47R (Whapples) v Birmingham Crosscity Clinical Commissioning Group [2015] EWCA Civ 435, (2015) 18 CCLR 300 The NHS continuing healthcare framework did not in general contemplate payment of housing costs associated with the patient’s own home, even when the patient received treatment there
18.48Daniel v St George’s Healthcare NHS Trust, London Ambulance Service [2016] EWHC 23 (QB) Medical practitioners and prison staff were required by the ECHR to do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge
18.49R (Dyer) v Welsh Ministers and others [2015] EWHC 3712 (Admin), (2016) 19 CCLR 84 The NHS in Wales had not been in breach of duty under section 3 of the National Health Service (Wales) Act 2006, by providing hospital accommodation for a woman with a complex mental health condition in England because of the lack of appropriate accommodation in Wales
18.50S (A Child) v NHS England [2016] EWHC 1395 (Admin), (2016) 19 CCLR 336 On the facts, the decision not to fund narcolepsy treatment for a 17-year-old child had disregarded relevant considerations and applied too stringent a test of exceptionality
18.50.1Sussex Community NHS Trust v Price (unreported and no neutral citation as yet, 7 October 2016) A possession order was granted where a patient refused to leave the ward
18.50.2R (Justice for Health) v Secretary of State for Health [2016] EWHC 2338 (Admin) It had been lawful for the Secretary of State for Health to promote a new staff contract aimed at facilitating a ‘7-day NHS’
Social care/NHS continuing healthcare and public health: cases and complaints
18.51R v North and East Devon Health Authority ex p Coughlan (1999) 2 CCLR 285 Local authorities were only empowered to provide nursing services to adults that were merely incidental or ancillary to the provision of residential accommodation and that were of a nature that a social services authority can be expected to provide
18.52The Health Service Ombudsman’s Report on NHS funding for long term care (13 February 2003) NHS bodies had wrongly been declining to provide NHS continuing healthcare and needed to review their policies and redress the hardship caused
18.53Complaint No E22/03 against the former Cambridgeshire Health Authority and South Cambridgeshire Primary Care Trust (The Pointon Case) (November 2003) Mr Pointon had wrongly been refused NHS continuing healthcare because the NHS focussed unduly and inappropriately on the fact that he was receiving care at home and on physical problems, rather than psychological problems and the special skills needed to cater for them
18.54The Health Service Ombudsman’s NHS funding for long term care: follow up report (HC 144) (16 December 2004) More needed to be done to revise eligibility criteria and provide redress
18.57R (Gunter) v South Western Staffordshire PCT [2005] EWHC 1894 (Admin), (2006) 9 CCLR 121 The NHS decision to refuse services was vitiated by its failure to appreciate that it could fund a user independent trust and the importance of the patient’s home life
18.55R (T) v Haringey LBC [2005] EWHC 2235 (Admin), (2006) 9 CCLR 58 Local authorities were not empowered to provide healthcare services to children
18.58R (Grogan) v Bexley NHS Care Trust [2006] EWHC 44 (Admin), (2006) 9 CCLR 188 A person may be entitled to NHS continuing healthcare notwithstanding that their needs could be met in local authority residential accommodation if the services of a registered nurse were provided by the NHS
18.59R (St Helens BC) v Manchester PCT [2008] EWCA Civ 931, (2008) 11 CCLR 774 Decisions as to whether a person was entitled to NHS continuing healthcare or local authority social care were to be made by the NHS bodies and any judicial review by a local authority would be on a conventional and not a merits basis
18.60R (Green) v South West Strategic Health Authority [2008] EWHC 2576 (Admin), (2009) 12 CCLR 93 On their proper construction, the health authority’s policy guidance did correctly incorporate the ‘primary health need’ test, which it properly applied
18.61Secretary of State for Work and Pensions v Slavin [2011] EWCA Civ 1515, (2012) 15 CCLR 354 Although in receipt of NHS continuing healthcare, the patient was not receiving ‘treatment’ and so was entitled to retain the mobility component of his DLA
18.62R (Dennison) v Bradford Clinical Commissioning Group [2014] EWHC 2552 (Admin) The CCG had been wrong to refuse to review a nursing home resident’s eligibility for NHS continuing healthcare during a period covered by two flawed assessments
18.63R (JF) v NHS Sheffield Clinical Commissioning Group [2014] EWHC 1345 (Admin) It had not been unlawful to provide ward monitoring and supervision to a person who received 1:1 supervision 24 hours a day while at home, under NHS continuing healthcare
18.64R (Whapples) v Birmingham Crosscity Clinical Commissioning Group [2015] EWCA Civ 435, (2015) 18 CCLR 300 The NHS continuing healthcare framework did not in general contemplate payment of housing costs associated with the patient’s own home, even when the patient received treatment there
18.64.1R (MH) v NHS [2015] EWHC 4243 (Admin) It had been irrational for the CCG to refuse to fund the cost of transporting MH to and from a day centre placement, when MH was profoundly disabled and entitled to NHS CHC
18.65National Aids Trust v National Health Service Commissioning Board (NHS England) [2016] EWHC 2005 Admin, (2016) 19 CCLR 459 NHS England had the power to commission and anti-retroviral drug to be used on a preventative basis for those at high risk of contracting HIV
Health care and persons subject to immigration control
18.66R v Hammersmith Hospitals NHS Trust ex p Reffell (2001) 4 CCLR 371, CA The Trust had been required to make a charge and rationally required an up-front deposit, since Mr Reffell was not prevented from securing treatment in his country of origin
18.67R (YA) v Secretary of State for Health [2009] EWCA Civ 225, (2009) 12 CCLR 213 It was not lawful to require up-front deposits from failed asylum-seekers who were unable to pay for medical treatment and who needed timeous treatment but were unable to leave the UK
18.67.1Ahmad v Secretary of State for the Health Department [2014] EWCA Civ 988, [2015] 1 WLR 593 An EEA national’s entitled to NHS treatment does not qualify as the possession of ‘comprehensive sickness insurance’, needed to qualify for permanent residence
18.68R (W, X, Y, Z) v Secretary of State for Health, Secretary of State for the Home Department [2015] EWCA Civ 1034 It was lawful for the NHS to inform the Secretary of State for the Home Department about unpaid NHS debts of overseas visitors
18.1The National Health Service Act (NHSA) 2006 and the National Health Service (Wales) Act (NHS(W)A) 2006 are the two principal Acts. They have, however, been hugely amended and supplemented by the Health and Social Care Act 2012.