R (Booker) v NHS Oldham and Direct Line Insurance PLC  EWHC 2593 (Admin)- read judgment
The High Court has held that where a claimant agrees a damages settlement that includes an indemnity to fund private nursing care should existing NHS provision be withdrawn, it was unlawful for a primary care trust to cease its funding of the claimant’s care on the basis that her needs would be met through the settlement.
The claimant, B, was a tetraplegic who had sustained her injuries in a road traffic accident. She had received care from the defendant NHS trust (“the Trust”) over a number of years, and there was no dispute that her medical needs made her eligible for future care. In October 2009, B’s personal injury case was settled on the basis of both a lump sum and periodical payments, the latter due to commence from 15 December 2011. In respect of the period between the settlement date and the first periodical payment, a series of “safety net undertakings” were given by both sides in the litigation, and by DLI, the insurer of the injury claim defendant. These were to the effect that B would use her best endeavours to maintain the NHS funded care that she was receiving, but, should it nonetheless be withdrawn, DLI would indemnify B against the cost of providing replacement care. In June 2010, the Trust informed B that it intended to withdraw its provision of care from her with effect from the autumn, on the basis that B had elected to receive private care and hence no longer required NHS services. B sought judicial review of this decision.
The Trust put forward two arguments in support of its position. First, it argued that it was not subjecting B’s treatment to an unlawful means test. The decision not to continue treatment was based not upon B’s financial position and ability to pay, but on the fact that she had “elected” to have private treatment and hence no longer had a “reasonable requirement” for continuing healthcare. Second, the Trust argued that the principle that the “tortfeasor pays” was applicable in the circumstances of the case, such that the NHS should not be forced to use its finite, public resources to provide care for the victim of someone else’s negligence when the relevant insurers could be legally compelled to pick up the bill.
HHJ Pelling QC, sitting as a High Court judge, rejected both arguments and found for B. In respect of the former, he noted that s.1(3) of the National Health Services Act 2006 and the Secretary of States’ National Framework Document [46-49] provided that eligibility for NHS treatment was based on an individual’s assessed needs, and not on an ability to pay. He went on :
“The PCT consider that it is entitled to draw a distinction between someone who has the means to pay for care privately and someone such as the Claimant in these proceedings who has recovered damages for personal injury. I am not persuaded that the distinction is at all as clear as the PCT maintains or that it forms a sound basis for arriving at the conclusion that has been reached in this case. A Claimant who is successful in recovering damages is entitled to do with the damages as he or she pleases. It is for this reason that the Interested Party [DLI] insisted upon the inclusion within the settlement agreement of anti-double recovery provisions. On that basis there is no clear distinction that can be drawn by a PCT in the position of this PCT between a person who is independently wealthy or is insured in relation to medical expenses and someone who has sufficient means to provide for his or her care privately by reason of what has been recovered in damages. In each of these cases, to refuse treatment by reference to the means of the patient would in my judgment be contrary to the principle identified by [a senior manager of the Trust] that the “NHS is not a means tested service and is provided to patients on the basis of their medical needs without reference to their financial position.” It is contrary to the principle set out in s.1(3) of the 2006 Act and could not have been arrived at if regard had been had to the provisions of the NHS Constitution to which I have referred above.
Turning to the “tortfeasor pays” principle, HHJ Pelling QC noted that it had been used conventionally to assist in assessing the damages of a claimant in a PI action. To date there was no authority that supported the extension of the rule to act as the basis for withdrawing NHS services to someone who would otherwise have been entitled to them [26-27]. Responding to this, the Trust argued that it could still take the point that the tortfeasor should pay into account when deciding on whether or not to provide care, as it was not prevented by statute from doing so. It further argued: (i) that a judicial review of its decision should be limited to a Wednesbury unreasonableness challenge; and, (ii) that an analogy could be drawn with the comments of Sir Anthony Clarke MR in R (Rogers) v Swindon NHS Primary Care Trust  EWCA Civ 392, a drug-provision case in which he held that a court should be extremely reluctant to intervene in cases in which a “hard-pressed authority with many competing demands on hits budget” had regard both to its own financial restraints as well as the needs of a patient when deciding whether or not to supply a drug.
HHJ Pelling was not persuaded by this reasoning. He held that in coming to its decision in the present case, the Trust had to have regard to the legislation and guidance considered above that established that comprehensive treatment, free at the point of delivery, would be provided on the basis of need rather than on ability to pay. In respect of Sir Anthony Clarke’s comments in Rogers, he held that the case was not analogous:
“ … this is not a case where the [Trust] allege that funds are not available to provide the care required to all who are eligible to receive it. Rather it is alleged that if the costs of providing future healthcare to [B] were avoided, the funds saved could be deployed for other purpose.
 Ultimately the only basis for refusing treatment to [B] but not to another is the presumed ability of [B] to recover the costs of paying for her care herself by reference to an indemnity to be obtained pursuant to the safety net undertakings [in the PI settlement]. In my judgment that was not a position it could lawfully or rationally adopt.”
Although there are strong grounds for distinguishing the present case from those concerning the decisions of individual NHS trusts not to provide particular drugs or treatments, a comparison seems at first sight to throw up an odd anomaly. On the one hand, the courts appear to be reluctant to compel trusts to direct scarce resources to the provision of particular treatments that patients cannot get elsewhere; on the other, they are also preventing trusts from freeing-up their resources by withholding treatment from patients who would receive equivalent private care.
However, the paradox is not as stark as it first appears. HHJ Pelling QC, referring to the case of Crofton v National Health Service Litigation Authority  EWCA Civ 71 , emphasised that he was not expressing any view as to the social and economic expediency of requiring a tortfeasor or his insurer to pay for the services that have or will be provided by the NHS. But the remedy for the state lay not in individual trusts taking decisions such as that in respect of B’s case, but in primary legislation which allowed that costs of treatment to be recovered from the insurers by the NHS (for example Part 3 of the Health and Social Care (Community Health and Standards) Act 2003). There were a number of reasons why this was preferable, including the need to avoid different approaches being taken by different PCTs, and to provide greater security, certainty and expediency for claimants and insurers alike when they came to settle cases.
In coming to his decision, HHJ Pelling QC drew upon 21st Century statutes and case law, and the modern procedural emphasis on resolving cases out of court. Yet despite this – and despite the state of permanent revolution that state health care has endured for well over a decade – his judgment rests on a simple and resilient principle that dates back to the founding of the NHS: a national health service, non-means tested and free at the point of delivery. Nye Bevan would approve.
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