Administrative Court rules on the meaning of “urgent treatment” in the context of the NHS charging scheme for migrants

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On 26 November 2021, the Administrative Court (Ritchie J) handed down judgment in R (OK) v Royal Free London NHS Foundation Trust (Secretary of State for Health and Social Care and Doctors of the World intervening) [2021] EWHC 3165 (Admin). The central issue in this challenge was the meaning of an “urgent service” for the purpose of the NHS charging regime for migrants.

The National Health Service Overseas Visitors Regulations 2015 (the 2015 Regulations) provide that bodies providing secondary health care services must charge and collect payment from a person who is an ‘overseas visitor’ (being a person not ordinarily resident in the UK) for such services. Following amendments introduced in 2017, a further obligation was introduced by Regulation 3(1A) of the 2015 Regulations for service providers to collect payment in advance of providing the service, unless securing payment “would prevent or delay the provision of (a) an immediately necessary service; or (b) an urgent service”. Thus, if a service is urgent or immediately necessary, it must be provided irrespective of whether or not payment has been collected in advance.

As to the meaning of ‘urgent service’, Regulation 3(7) of the 2015 Regulations provides:

““urgent service” means a service that the treating clinician determines is not an immediately necessary service but which should not wait until the recipient can be reasonably expected to leave the United Kingdom.”

Detailed guidance is provided by the Department for Health and Social Care (“DHSC”) on the meaning and application of the 2015 Regulations.

The Claimant in OK had lived in the UK since 1990. He was granted indefinite leave to remain in 1996; however, following a conviction for cannabis importation and false document offences, he was the subject of a deportation order which had the effect of invalidating his leave. When, therefore, the Claimant attended hospital in 2019 and was diagnosed as suffering from an acute kidney injury as a result of sepsis caused by a dog bite, he was, for the purposes of the 2015 Regulations, an ‘overseas visitor’.

The Claimant was initially provided with routine scheduled haemodialysis three times a week. Subsequently, the defendant Trust’s overseas visitors team ascertained that the Claimant was an ‘overseas visitor’ and chargeable pursuant to the 2015 Regulations. At that point, the Defendant’s clinicians decided that, as he was only entitled to urgent (or immediately necessary) treatment, the Claimant would need to attend Accident & Emergency in order to obtain dialysis treatment, which would only be provided following an assessment that the treatment was urgent.

The Claimant challenged the Defendant’s decision-making on the basis that the Trust’s doctors misunderstood the meaning of urgent treatment, which only requires clinicians to consider whether the treatment in question can wait until the overseas visitor can reasonably be expected to leave the UK. The Claimant argued that this was the correct meaning of the term as indicated both by the 2015 Regulations and the DHSC guidance. In this case, it was argued, the clinicians provided an inferior service on the simple basis that the claimant was an overseas visitor, and thus strayed into consideration of policy rather than clinical issues. The defendant Trust accepted that, had the claimant not been an overseas visitor, he would have continued to receive scheduled dialysis treatment.

Doctors of the World intervened in support of the Claimant’s case; the Secretary of State for Health and Social Care intervened in support of the Defendant’s position.

Ritchie J dismissed the challenge, concluding that:

  1. there was a “good reason” for instructing the Claimant to attend at A & E, being that “it facilitated ongoing reassessment of the urgency of his condition as time passed, based on need”;
  2. there was no evidence before the judge that scheduled dialysis was “somehow medically better” than repeated trips to A & E to obtain that treatment after assessment;
  3. in any event, the Defendant’s clinicians were entitled to offer the Claimant what was, in effect, a lower standard of care: “the choice was a matter for the internal organisation of the NHS service and the clinician’s judgment, taking all matters into account.  The NHS can go above and beyond the necessary level of care mandated by any patient’s condition and perhaps do so when funds, staff and equipment permit, but that does not entitle any [ordinarily resident] or [overseas visitor] patient to demand “standard plus” care”;
  4. there was no misunderstanding of the law in the Defendant’s decision-making.

Thus, Ritchie J concluded that the defendant Trust had not acted unlawfully in changing the Claimant’s treatment regime following its discovery that he was subject to the charging regime.

Admas Habteslasie was instructed by Bhatt Murphy and appeared for Doctors of the World.

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