21.70R (YA) v Secretary of State for Health [2009] EWCA Civ 225, (2009) 12 CCLR 213
A failed asylum-seeker who could not return to his country of origin was entitled to NHS care that was either immediately necessary or could not wait for his return to his country of origin
Facts: YA was a failed Palestinian asylum-seeker who, however, was unable to return to Palestine because it was impossible to obtain a travel document that permitted it. He was seriously ill with liver disease, received NHS treatment and was then billed for about £9,000.00. The hospital then agreed to withdraw then bill and provide further treatment without charge. YA then substituted the Secretary of State for Health as defendant and challenged the lawfulness of the Secretary of State’s guidance to health authorities.
Judgment: the Court of Appeal (Ward, Lloyd and Rimer LJJ) held that where a person’s residence was unlawful (as in this case, albeit that YA had ‘temporary admission’ to the UK) they cannot be ordinarily resident, or lawfully resident, so the Secretary of State was correct that the charging provisions under section 75 of the National Health Service Act 2006 and the National Health Service (Charges to Overseas Visitors) Regulations 1989 applied. However, trusts had a discretion to treat those who cannot or will not pay and the Secretary of State’s guidance was unlawful, in that it failed to identify how that discretion was to be exercised in relation to different categories of treatment, in particular in the case of failed asylum-seekers unable to leave the UK:
74. The Guidance divides treatment into three categories. The first is ‘immediately necessary treatment’, referred to at paragraph 3.1 but further defined in paragraph 9 which makes it clear:
‘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.
75. The second category is ‘urgent treatment’ which is treatment which is not immediately necessary but cannot wait until the patient returns home. The advice that is given by the Guidance is that when the patient is chargeable the Trust should ‘wherever possible’ seek deposits equivalent to the estimated full cost of the treatment in advance of providing any treatment. The problem here is that the Guidance is silent on what should happen when it is not possible to provide that deposit. No help is given in the case of those who cannot return home before the treatment does become necessary. What is to happen to the patient who cannot wait? In those respects the guidance is not clear and unambiguous and in so far as it purports to be dealing with a category of patients like those before us, the failed asylum-seekers who cannot be returned, it is seriously misleading.
76. As for non-urgent treatment, namely ‘routine elective treatment which could in fact wait until the patient returned home’, the advice given is that where the patient is chargeable, the Trust should not initiate treatment processes (even by putting the patient on a waiting list) until a full deposit has been obtained. The assumption has to be that the patient can return home before that routine elective treatment becomes necessary. Again, it is not clear what should be done for those who have no prospect of returning within a medically acceptable time. There is no suggestion that it may be necessary to treat in those circumstances or even that it may be necessary to investigate the likelihood and length of any undue delay. Once again the Guidance is not clear enough.