2017 reforms to the NHS charging regime for ‘overseas visitors’ upheld

Cases

Judgment was handed down today in R (MP) v Secretary of State for Health and Social Care [2018] EWHC [3392] (Admin).  Lewis J upheld the changes to system of charging ‘overseas visitors’ (those not ordinarily resident in the UK) for use of NHS services brought about by the National Health Service (Charges to Overseas Visitors) Amendment Regulations 2017 (“the 2017 Regulations”).

Judicial review was sought of the 2017 Regulations, which had the effect of: (i) mandating upfront charging of overseas visitors for treatment that is not “urgent or immediately necessary”; (ii) requiring NHS trusts to flag on their record whether an overseas visitors is chargeable; and (iii) extended charging to all secondary services funded by the NHS, regardless of whether those services are provided by NHS or other providers; or whether they are provided at a hospital or in a community setting.

The Claimant sought to impugn various elements of the 2017 Regulations on three grounds, all of which were rejected by the Court:

First, the Court did not accept that the Secretary of State was obliged to consult on either the ‘upfront charging requirement’ or the ‘status recording requirement’ – (i) and (ii) above. That was because although the Secretary of State had chosen to consult on other changes (e.g. the extension of charging under (iii)), the other two changes were “discrete, self-contained issues” and it did not matter that those proposals were publicised in the same consultation response document as other reforms upon which the Secretary of State had consulted.  Lewis J also held that following an analysis of the Secretary of State’s practice in respect of changes to the charging regime for overseas visitors since 1982, the Claimant did not enjoy a legitimate expectation of consultation in respect of these changes.

Secondly, the Court considered that the Secretary of State had complied with the public sector equality duty under section 149 of the Equality Act 2010, and related duties under sections 1B and 1C of the NHS Act 2006. The possibility that the changes could have a greater impact on some protected groups was explicitly recognised; but deemed justified as a proportionate means of ensuring the long-term sustainability of the NHS.

Finally, Lewis J refused the Claimant permission to contend that there had been a failing in the discharge of the Secretary of State’s Tameside duty; there was no basis for contending that the decision as to what inquiries to make was irrational.

The judgment is available here.

Jason Coppel QC and Christopher Knight appeared for the Claimant (MP), instructed by Adam Hundt of Deighton Pierce Glynn.

Joseph Barrett and Daniel Isenberg appeared for the Secretary of State for Health and Social Care, instructed by the Government Legal Department.