Joseph Barrett successfully resists JR challenge to NHS charging regime


In R (OK) v The Royal Free London NHS Foundation Trust; Doctors of the World; Secretary of State for Health and Social Care [2021] EWHC 3165 (Admin) (26 November 2021), the High Court (Ritchie J) dismissed a judicial review test case that sought to establish that overseas visitors in receipt of “urgent” NHS treatment pursuant to the National Health Service (Charges to Overseas Visitors) Regulations 2015 were entitled to the same healthcare provision as would be provided to a person ordinarily resident in the UK. 

The Claimant, OK, was initially in receipt of scheduled dialysis treatment. Upon identifying OK’s status as an overseas visitor, the Hospital revised OK’s treatment plan to provide for treatment by way of ad-hoc dialysis following attendance at Accident and Emergency. 

The Claimant, supported by Doctors of the World, contended that the Hospital had acted unlawfully as OK was being treated less favourably than he would have been but for his immigration status (or lack of ordinary residence in the UK). 

The High Court dismissed the claim for judicial review on all grounds. In particular, the Court held that immigration status was a relevant consideration in the context of treatment decisions and that there was no principle that an overseas visitor was entitled to, or could expect, the same treatment as a person ordinarily resident in the UK. To the contrary, the Claimant was only entitled to “urgent” treatment, and provided that the Hospital’s decisions in respect of such treatment were not irrational there was no public law irrationality that required or justified a Court’s intervention. 

Joseph Barrett of 11KBW was sole counsel for the Secretary of State for Health and Social Care