Mitocariu & Anor, R (On the Application Of) v Central And North West London NHS Foundation Trust

These proceedings raise points of principle in respect of the powers of NHS Foundation Trusts pursuant to the National Health Service Act 2006 (“the 2006 Act”) regarding financial assistance to patients whilst they are detained pursuant to hospital orders made under the Mental Health Act 1983 (“the 1983 Act”). In essence they raise a question about the powers or duties of NHS Foundation Trusts in circumstances where the patient receiving mental health care is or appears to be unable, for whatever reason, to fund occasional expenses.

The Claimants were represented by Adam Wagner and Jessica Elliott of counsel and the Defendant was represented by Parishil Patel of counsel.

The Claimants are both Romanian nationals who were detained pursuant to sections 48 and 49 of the 1983 Act pending sentence for offences. Mr Mitocariu was detained on 10 June 2014 and was then sentenced on 7 October 2014 by way of a hospital order under sections 37 and 41 of the 1983 Act. Mr Lazarel was initially detained on 10 February 2015 and then sentenced to a hospital order on 27 July 2015. Mr Mitocariu was discharged from the Trust’s care on 20 July 2016 and was the subject of a deportation order in August 2016. Mr Lazarel was discharged on 22 January 2017 and was deported.

In March 2016 and subsequently solicitors for the Claimants requested the payment of “pocket money” to assist the Claimants whilst they were being detained. It is useful to point out at this stage that the expression “pocket money” derives from the heading to section 122 of the 1983 Act. By letter dated 9 May 2016 the Claimants’ solicitors informed the Defendant, “We are concerned by the difference of opinion amongst clinicians regarding the provision of pocket money for in-patients at Park Royal Hospital and the unfortunate manner in which it impacts on the welfare and the dignity of our clients. Both our clients have no recourse to public funds yet they do not benefit from this provision which is readily available in all other Trusts throughout the country.”

In short the Claimants contend that if for whatever reason they were not in receipt of benefits during the time when they were detained there was a power available to the Defendant to make regular payments to them to ensure their dignity was maintained whilst in care. That money would have enabled the Claimants to acquire basic unspecified goods and services and should have been at the current rate paid to persons in care namely £24.90. The Claimants contend that there is in fact something akin to a duty to make such payments on the basis that it is the only logical outcome where there is a power to make such payments.

The letters from the Claimant’s solicitors and the Claim Form filed in these proceedings were premised on the application of section 122 of the 1983 Act as amended by section 41 of the Health and Social Care Act 2012 including the Explanation Note thereto.

It was contended that “section 122 of the Mental Health Act as amended by section 41 of the Health and Social Care Act 2012 provides that persons who are receiving treatment for mental disorders as in-patients in hospitals (whether liable to be detained or not) are entitled to pocket money in respect of occasional personal expenses where they would otherwise be without resources to meet those expenses.” Reference was made to the Explanatory Memorandum to the Health and Social Care Act 2012 which stated that section 41 “abolishes the power of the Secretary of State in section 122 of the 1983 Act to make payment to in-patients in mental health hospitals in respect of their occasional personal expenses, where they cannot meet those expenses themselves. In England this power was previously delegated to [Primary Care Trusts] by means of regulations.” It then continued “Following the abolition of PCTs on 31 March 2013 their work was taken over by Clinical Commissioning Groups (CCGs). Hence the “CCGs and the NHS Commissioning Board would still be able to arrange for such payments to be made to NHS patients under the NHS Act.” In conclusion the statement of grounds asserted “Despite repeated representations and in breach of section 122 of the Mental Health Act 1983 as amended [by the 2012 Act] [the Claimants receive] no pocket money notwithstanding the fact that the Claimants have no recourse to public funds.”

In the summary of grounds for contesting the claim the Defendant asserted that as part of the delivery of health services that it provides it has a discretion to make humanitarian payments to those who through no fault of their own are without access to money, in the interests of aiding their recovery. The Defendant also contended that having considered Mr Mitocariu’s request it exercised that discretion in his favour by providing a weekly allowance to him since 3 August 2016. Prior to that date it operated a system whereby a patient’s needs were met from petty cash but it was not possible with accuracy to clarify which patients have been receiving what. It was noted that the system was being changed so as to document decisions made and would be determined by a standard operating procedure in future. It was contended that Mr Mitocariu’s position would not have been substantially affected as a result of the way the system was implemented prior to 3 August 2016.

Permission was granted by Michael Fordham QC sitting as a Deputy High Court Judge on 16 January 2017 in which he noted that it is common ground that (a) the defendant had power to make payment as sought from at least 9 May 2016 and (b) its exercise was appropriate in this case. The learned Deputy went on to conclude, “In my judgment, there is a case to answer as to whether the defendant did act lawfully from these various dates, and it is no knock –out blow to say that the claimant (i) may have had some or all of the equivalent from petty cash and (ii) “at the very least” had full in patient care. It is not clear, in light of the abolition of the Secretary of State’s power what guidance or recognition was given to the defendant’s powers, especially if there were no regulations though it does not seem right to say the duty arose under s122. A public authority with a power should consider whether to exercise it and the clear and consistent requests for help from at least 9.5.16 were met with 3 months of apparent inaction and holding replies, with a “review” and statement of “expectation” which are arguably legally inadequate. It does not seem there was or is any “entitlement” absent regulations nor is there evidence at present to demonstrate the Article 3 threshold being breached; but I do not restrict the grant of permission. The judge dealing with the matter substantively will be able to look at the case in the round on more complete evidence and submissions.”

Directions were given for the filing of detailed grounds of objection as well as for the Claimants to serve any reply and further evidence as well as for bundles and skeleton arguments. It was indicated that the proceedings brought by the Claimants might be treated as linked cases.

Detailed grounds for opposing the claim were filed on 26 May 2017. In summary the Defendant asserted that no claim can be based on section 122 of the 1983 Act because it was amended so as to remove the power of the Secretary of State to make payments in England. Explanatory note 453 to section 41 Health and Social Care Act 2012 provided that it would still be possible for CCG’s and the NHS Commissioning Board to arrange for such payments to be made to NHS patients under the NHS Act did not create an entitlement to a basic level of income support for sentenced prisoners. The Defendant stated “It is accepted that the Trust can and should, as part of the service it is commissioned to provide by NHS England under the NHS Act, consider and where appropriate meet the occasional expenses of a patient, but only where such is commensurate with their therapeutic programme relating to their admission into hospital.” The detailed grounds for opposing the claim went on to make the following points:

The Claimants filed no evidence notwithstanding the directions enabling them to do so. Such evidence might have addressed the amounts received and the circumstances in which it was received or not received including the Claimants needs, including therapeutic needs. A skeleton argument was filed on behalf of the Claimants on 24 November 2017 raising further matters which were not raised in the Claimant’s grounds and for which no application for permission to amend had been sought. They were arguably more that a mere amplification of the grounds set out in the claim form.

The submissions made in the skeleton argument, and which the Claimants asked would stand as their grounds, raised the following:

The Defendant filed its skeleton argument on 8 December 2017 and made the following submissions:

At the hearing the Defendant accepted that it was able to deal with the matters set out in the Claimant’s skeleton argument after taking into account the terms on which permission was granted. I ordered that the skeleton argument would stand as the amended grounds. The Claimant asked for an adjournment on a number of bases including late filing of the Defendant’s’ skeleton and also the assertion in paragraph 15 that the Defendant had no statutory power to make “pocket money” payments. After hearing submissions I refused the adjournment on the basis that it was always a matter for the Claimant to establish the existence, nature and scope of the power, it was a point of law and if further time was required to consider and make submissions that would be made available. The hearing therefore proceeded.

The submissions set out above were amplified in oral submissions. There was no request for a further opportunity to lodge additional written submissions on any points. One further point was sought to be raised in oral submissions from the Claimants namely that the Defendant failed to take into account that it had a power to make payments and therefore the Defendant acted unlawfully. The late raising of that point was objected to as it was not within the Claimants’ skeleton argument. I will address that later.

The National Health Service Act 2006 established a duty on the party of the Secretary of State to promote health service under section 1:

(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.

That duty was extended to the National Health Service Commissioning Board by section 1H.

NHS foundation trusts are public benefit corporations the function of which are to provide in accordance with Chapter 5 of the 2006 Act goods and services for the purposes of the health service in England and which are constituted in accordance with Schedule 7 of the 2006 Act.

The functions or purposes of an NHS foundation trust are as set out in section 43 of the 2006 Act

Provision of Goods and Services

(1)

The principal purpose of an NHS foundation trust is the provision of goods and services for the purposes of the health service in England;

(2)

An NHS foundation trust may provide goods and services for any purpose related to-

(a)

the provision of services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness; and

(b)

the promotion and protection of public health.

In order to carry out those functions the NHS foundation trust, a creation of statute, is given powers certain powers in particular

Section 46

(6)

An NHS foundation trust may give financial assistance (whether by way of loan, guarantee or otherwise) to any person for the purposes of or in connection with its functions.

Section 47

(1)

An NHS foundation trust may do anything which appears to it to be necessary or expedient for the purpose of or in connection with its functions.

The reliance by the Claimants upon section 122 of the 1983 Act was misplaced as the power to make payments thereunder was abolished by section 41 of the 2012 Act in so far as patients in England were concerned. The reference to the explanatory note to section 41 which suggests that “[Clinical Commissioning Groups] and the NHS Commissioning Board would still be able to arrange for such payments to be made to NHS patients under the NHS Act” is not binding and in any event begs the question of whether those payments are made pursuant to a power or duty and what the scope of such power or duty is. The claim as originally formulated did not, on the face it, give rise to a basis upon which to found a claim for judicial review and the suggestion of there being any entitlement appeared to be misplaced.

However, as the learned Deputy Judge found once the acknowledgment of service and background correspondence filed with the papers were considered it appeared that there was some common ground to the extent that there was a power to make payments and that power was exercised in respect of making regular payments from a certain date and before that in respect of other non-regular payments. On that basis it was correct to grant permission so that the matter could be explored more fully with the opportunity being given by the Claimants to file further evidence. Although permission was not limited and therefore permission was granted for a challenge under Article 3 of the European Convention on Human Rights that was not proceeded with by the Claimants who, through their counsel at the hearing, accepted there was no evidence to meet the threshold for such a claim.

The essential issues that arise in these proceedings are as follows:

The Defendant’s position on the first question of whether it had the power to make payments appears to have moved during the proceedings. In the acknowledgment of service it contended, “The Defendant asserts that as part of the delivery of health services that it provides it has a discretion to make humanitarian payments to those who through no fault of their own are without access to money, in the interests of aiding their recovery.” That is the acceptance of at least some power on the part of the Defendant which it then went on to say it exercised in Mr Mitocaariu’s favour since 3 August 2016. In the Detailed Grounds for Opposing the Claim on 26 May 2017 the Defendant said at paragraph 18 (5) “it is accepted that the Trust can and should, as part of the service it is commissioned to provide by NHS England under the NHS Act, consider and where appropriate meet the occasional expenses of a patient, but only where such is commensurate with their therapeutic programme relating to their admission to hospital.” By the time the skeleton argument was filed on 8 December 2017 it was contended at paragraph 15 by the Defendant “the Trust has no statutory power to make “pocket money” payments to the Claimants”. It was asserted that it acted pursuant to contractual arrangements with NHS England.

In my judgment the initial position taken by the Defendant was correct. It is clear that a power exists on the part of the Defendant to make payment to patients. That power arose by reason of section 43 of the 2006 Act which identified the functions of the foundation trusts and section 46 of the 2006 Act which provided the foundation trusts with financial powers in wide terms in respect of the those functions. In particular section 46 (6) provides “An NHS foundation trust may give financial assistance (whether by way of loan, guarantee or otherwise) to any person for the purposes of or in connection with its function.” That is clearly a power which is wide enough to cover occasional payments to in-patients. Section 47 likewise provides general powers which are wide enough to give the Defendant power to make such payments.

The belated reliance by the Defendant upon a contractual relationship with NHS England so as to assert that it can only make payments where such are authorised by that contract raises a number of interesting questions. First of all it would be incumbent upon the Defendant to provide the full texts of any such contract that deal with the provision of such services and whether they preclude or permit payments to be made. The full text was not provided. Although the NHS Standard Contract 2016/17 Particulars (Full Length) in respect of the Defendant was provided it is clear there are service specifications included which were not provided. Secondly, the contract does not appear to address this point regarding payments. Thirdly, insofar as a contract did purport to restrict a statutory power of a Trust to make payments, the contract would be ultra vires.

Therefore the question remains whether the 2006 Act provides the Defendant with power to make payments to in-patients. In my opinion the answer to that is clearly in the affirmative for the reasons set out above.

The second issue is what was the scope and nature of the power, if any, held by the Defendants to make payments. The starting point is the statute that provides the power itself. The powers set out in section 46 and 47 of the 2006 Act clearly limit the power to the purposes or in connection with the functions of the NHS foundation trust as set out in section 43. The purposes are the provision of services to individuals for or in connection with the prevention, diagnosis or treatment of illness and the promotion and protection of public health. Any payment outside of those purposes would be outside of the foundation trust’s powers and therefore ultra vires.

Therefore whilst the Defendant had a power to make payments it could only make those payments where there were for the purposes or in connection with its functions under section 43 of the 2006 Act. As with other services provided by foundation trusts how its powers should be used depends upon the judgment of clinicians taking into account all of the relevant circumstances including the patient’s financial circumstances and treatment.

The claim as advanced by the Claimants, as clarified during the hearing, was very broad. The Claimants’ assertion was that there was power to make standard regular payments to every in-patient who was not in receipt of benefits irrespective of need or the judgment of clinicians. To ensure the dignity of the patient standard regular payments ought to be made without the patient having to ask or be questioned about needs. That submission was in my judgment advanced on a broad basis, at least in part, to deal with one particular problem in the Claimants’ case which is that no evidence at all was provided by the Claimants as to their means, what they received from the Defendant, what they received from third parties such as family members and how any lack of money impacted upon the Claimants’ therapeutic needs. In the absence of that specific evidence as to the exercise of the power in the present case the Claimants have therefore advanced a broad submission.

In my judgment that broad submission must fail. Whilst there was a power to make payments, the amount, timing and frequency of those payment was a matter for the discretion of the Defendant taking into account all relevant factors including the specific therapeutic requirements of the patient. The discretion as to how to deploy what are clearly finite resources had to be exercised in furtherance of or in connection with the purposes identified in section 43 of the 2006 Act. Whilst the maintenance of the patients dignity is clearly an important aspect of the statutory purposes identified in section 43, as recognised by the Defendant, that requires consideration on a case by case basis taking into account all of the circumstances of the individual patient just as much as the other therapeutic services such as the provision of medications and other treatments.

Did the Defendant lawfully exercise its power? In my judgment the Defendant did exercise the power lawfully because it is clear from the uncontested progress notes that the financial circumstances of the Defendants were regularly considered and addressed appropriately. In the case of Mr Lazarel he was assisted in respect of a claim for benefit including the completion of a habitual residency test but ultimately he refused to complete it because he did not want to disclose information including property that he owned in Romania. On 29 April 2016 the Defendant identified the need for Mr Lazarel to attend the Romanian consulate and to pay a fee for a certain documentation. That fee was paid by the Defendant. The records show that any financial issues were identified and acted upon whilst in the Defendant’s care in a manner commensurate with the therapeutic treatment. In the case of Mr Mitocariu his financial position was regularly assessed and as a result of those assessments he was provided with a winter coat, topped up oyster cards and also £30 to cover expenses for his journey back to Romania. Other support is said to have been given which was not recorded. Then on 3 August 2016 he was, following the threat of legal proceedings, given a regular payment of £16.40 per week as a “holding measure to stave off proceedings whilst legal certainty could be established.”

In my judgment the Defendant had a power to make payments to the Claimants only on the basis that they were commensurate with their therapeutic needs. As the holder of such a power the Defendant was obliged to consider whether it was appropriate to exercise that power. This was done by way of regular assessments of the Claimants needs. It cannot be said, as the Claimants contend, that the failure to pay standard regular weekly amounts was an unlawful exercise of the power. The power was limited by the statutory functions set out in the 2006 Act and payments could only be made as part of or in connection with those functions. The Defendant had to consider whether any payments were appropriate from time to time and that is the approach in fact adopted. The submission by the Claimants that there was only one way in which the Defendant could exercise that power, namely in favour of standard regular weekly payments has no basis.

Mr Patel argued that the Defendant did not have power to make regular standard payments to patients akin to social security payments. I agree that such a standardised approach involving making regular payments irrespective of and unrelated to the therapeutic needs of the patient would be outside of the powers granted to a foundation trust.

Did the absence of a policy mean the Defendant acted unlawfully? The mere fact that there is no policy employed by the Defendant does not render the exercise of its power unlawful. The Defendant in considering and acting upon the specific financial circumstances and the specific therapeutic needs of the patient, which may vary greatly, is a lawful discharge of the power. Mr Wagner on behalf of the Claimants argued that if there was no policy the Defendant should have determined to make payments consistently with the approach adopted by the other foundation trusts he identified and which, he contends, would have led the Defendant to make standard regular payments each week to the Claimants. That argument is to ignore that the valid exercise of the power requires the Defendant to consider the specific financial circumstances and the specific therapeutic treatment being provided. Neither of those are standard and therefore a standardised response without it being commensurate with the therapeutic treatment required is not appropriate or indeed within the power given to the Defendant. The evidence of what is done by other foundation trusts is sketchy at best having being drawn from the websites of certain selected foundation trusts. It cannot begin to provide a proper basis for challenge to the exercise of the power by the Defendant.

I accept the well recognised principle of public law that all persons in a similar position should be treated similarly and that any discretionary public law power “must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it”: R (Hussein) v Secretary of State for the Home Department [2012] EWHC 1952. As Lord Bingham said in R (O’Brien) v Independent Assessor [2007] UKHL 10, “It is generally desirable that decision-maker, whether administrative or judicial, should act in a broadly consistent manner.”

In the present case the Defendant regularly enquired as to the Claimants’ financial needs and there is no evidence that those were not met. When needs were identified they were met by the Defendant in a manner commensurate with the therapeutic treatment being provided. In my judgment that is the lawful exercise of the power and no policy was required so as to prevent arbitrary treatment.

The assertion that there was in fact something akin to a duty was difficult to follow. It appeared to be suggested that a duty was the only logical conclusion to the proper exercise of the power, in effect a duty to make standardised regular payments irrespective of whether it was commensurate with the therapeutic needs of the in-patient. Reliance upon that assertion was misplaced. There was no entitlement to any payments and the suggestion that there was some duty to make any payments is without foundation.

Finally, on behalf of the Claimants it was asserted during the course of oral submissions that the Defendant acted unlawfully by not realising that it had a power. The Claimants relied upon the fact that the Defendant was now asserting at paragraph 15 of its skeleton that it had no statutory power to make “pocket money” payments. That late submission was objected to by the Defendant. In my judgment it is too late to raise such grounds and the Claimants did not seek to further amend the grounds to rely upon it. Such a point would have required a considered response from the Defendant supported by evidence which may well have led to an adjournment. However, and more importantly, it appears to be clearly unarguable. The position as set out in the Defendant’s summary grounds asserted that it had a discretion to make humanitarian payments to those who through no fault of their own are without access to money in the interests of aiding their recovery. That was a clear recognition of the existence of a power. This was clear from the evidence, and in particular the progress notes, that there was regular consideration of the Claimants’ financial needs and that those needs were met. The belated assertion by the Defendant in its skeleton argument that there was no power does not alter the position. Whilst I do not need to express any view in respect of the late submission by the Claimants in my judgment, on the basis of the documents before the court, it has no proper basis in fact.

The power exists under the 2006 Act to make what have been described as “pocket money payments” to in-patients but that power only arises and can only be exercised for and in connection with functions identified under section 43 of the 2006 Act. The discretion of a foundation trust to make payments is limited to that which is commensurate with the therapeutic treatment being provided. There is no entitlement to payment neither is there a duty to make payment. The power that is held by the foundation trust is one which must take into account all the circumstances of the individual case including financial needs and the nature of the therapeutic treatment being provided.

For the reasons set out above the claim is dismissed. The parties shall seek to agree consequential orders and prepare a minute of order. In the event the parties are unable to agree any matters they should file written submissions within 7 days of the hand down of this judgment. Consequential matters may be dealt with by way of a telephone hearing.