The applicant was a failed asylum seeker who sought judicial review of a decision of an NHS Trust not to provide him with free care. The court was asked for guidance as to whether a health trust had a discretion to provide free health care to a patient who was not ordinarily resident in the UK.
Held: An NHS trust did have a discretion to grant or withhold treatment for such patients. Services provided under the applicable health scheme should normally be provided free of charge. A failed asylum seeker could not ordinarily claim to be ‘ordinarily resident’. There remained a difference between lawful presence in the UK and lawful residence. Any free treatment was to be provided as an indulgence and not in satisfaction of a right. A hospital’s discretion to assist did not create a duty. The official guidance was however unlawful in that it did not correctly describe the duty to those who required urgent assistance, nor the extent of the discretion it had toward those requiring non-urgent assistance.
‘the statute in need of construction is the 2006 NHS Act. As set out at [8] above, the Secretary of State’s duty prescribed by section 1 is to continue the promotion in England of a comprehensive health service designed to secure improvement in the health ‘of the people of England’. Note that it is the people of England, not the people in England, which suggests that the beneficiaries of this free health service are to be those with some link to England so as to be part and parcel of the fabric of the place. It connotes a legitimate connection with the country. The exclusion from this free service of non-residents and the right conferred by section 175 to charge such persons as are not ordinarily resident reinforces this notion of segregation between them and us. This strongly suggests that, as a rule, the benefits were not intended by Parliament to be bestowed on those who ought not to be here.’
Judges:
Lord Justice Ward, Lord Justice Lloyd and Lord Justice Rimer
Citations:
[2009] EWCA Civ 225, Times 02-Apr-2009, (2009) 12 CCL Rep 213, [2010] 1 All ER 87, [2009] PTSR 1680, [2010] 1 WLR 279, [2009] LS Law Medical 282
Links:
Statutes:
National Health Service (Charges to Overseas Visitors) Regulations (SI 1989 No 306)
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – Szoma v Secretary of State for the Department of Work and Pensions HL 28-Jul-2005
The applicant had claimed asylum on entry and was temporarily admitted. Though his claim for asylum was later refused, those admitted in this way were granted indefinite leave to remain. He had claimed and received benefits at first, but then these . .
Cited by:
Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Lists of cited by and citing cases may be incomplete.
Health Professions, Immigration
Updated: 07 August 2022; Ref: scu.326981