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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/471.html
Cite as: [2013] EWCA Civ 471, [2014] 1 WLR 111, [2013] MHLR 194, [2013] PIQR P16, [2013] 4 All ER 429, [2014] WLR 111, (2013) 16 CCL Rep 376, [2013] WLR(D) 158

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Neutral Citation Number: [2013] EWCA Civ 471
Case No: B3/2012/0568

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE PLATTS

[2012] EWHC 521 (QB)

Royal Courts of Justice
Strand, London, WC2A 2LL
30/04/2013

B e f o r e :

LORD JUSTICE RIX
LORD JUSTICE AIKENS
and
LADY JUSTICE BLACK

____________________

Between:
North Dorset NHS Primary Care Trust & Anr
Appellants
- and -

Mr. Timothy Frederick Coombs
Respondent

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(Transcript of the Handed Down Judgment of
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____________________

Jenni Richards QC (instructed by DAC Beachcroft LLP) for the Appellants
Martin Spencer QC & Tejina Mangat (instructed by Moore & Blatch) for the Respondent
Hearing dates : 23 October 2012

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Rix :

  1. Can an involuntary patient detained in a mental hospital under the provisions of the Mental Health Act 1983 pay for his care or treatment, or is such a possibility denied the patient (or his family on his behalf) by the provisions of that Act (the "MHA 1983") and/or public policy? That is the rather bald issue raised by this appeal. I call it a bald issue, because it has arisen by way of a preliminary point in circumstances where it is necessarily difficult to visualise the particular circumstances in which it might arise. The preliminary issue has been stated as follows:
  2. "Whether a person detained under a provision of the Mental Health Act is, as a matter of public policy or otherwise, prevented from paying for his own care/treatment?"
  3. The background of this litigation can be briefly stated. The claimant, and in this court the respondent, is Mr Timothy Coombs, who sues by his brother and litigation friend David Coombs. Timothy Coombs has had a long psychiatric history. He was born in 1957. In 1980 he suffered a major depressive disorder. In 1990 a diagnosis of compulsive neurosis was confirmed. In 2000 he was detained under section 3 of the 1983 Act in a locked unit at Forston Clinic, Dorset. After complaining of chest pains he was taken to Dorset County Hospital, from where he absconded on 22 December 2000. A few days later, on 25 December, he was found in Nottingham and on 27 December he was fetched from there by ambulance sent from Bournemouth to take him back to the Forston Clinic. On his way, he jumped or fell from the back of the ambulance and sustained a head injury, said to be severe.
  4. That injury has led to these proceedings against the two health authorities who are alleged to have been responsible for him at that time, namely the defendants, and here the appellants, North Dorset NHS Primary Care Trust and Nottinghamshire Healthcare NHS Trust (the "Trusts"). The preliminary issue has arisen as to whether the Trusts can in any event be made responsible for the costs of care or treatment during Mr Coombs' detention under the MHA 1983. It was at one time thought that such detention might be life-long, but it may be, as we were told during the appeal, that the prognosis could, happily, be less gloomy. At any rate it is Mr Coombs' case that, without his brain injury, he could have expected a measure of recovery from the acute illness which led to his detention. The Trusts, however, maintain that his head injury has made little difference to his behaviour or his need for treatment and care.
  5. At the time when the preliminary issue was ordered Mr Coombs was detained at Llanbedr Court, a low secure private hospital near Newport in Gwent. The cost of his placement there was funded by the NHS Bournemouth and Poole Primary Care Trust, which I understand to be Mr Coombs' local PCT. On 16 May 2012 Mr Coombs was transferred, with that PCT's approval, to St Andrew's Hospital in Northampton, another private hospital, where that PCT continued to fund his treatment.
  6. The Trusts have accepted liability for Mr Coombs' fall from the ambulance and his resultant injury, and his claim has moved to the determination of the quantum of such liability. The practical question raised by the preliminary issue is whether Mr Coombs (or his family on his behalf) can play any role in paying privately for his care or treatment as a detained patient. If he cannot, then the Trusts are to that extent relieved from responsibility as admitted tortfeasors, and that cost will simply fall exclusively on the appropriate NHS funding body. The Trusts' case is that a detained patient is analogous to a prisoner: his care is wholly in the hands of the authorities, who have complete control over his treatment, so much so that it would be inconceivable and against public policy to admit the patient to any role at all in the funding of his treatment. Mr Coombs' case is that, central as that control is, nevertheless, to the extent that there is no conflict with the recommendations of his "responsible clinician" (ie the "approved clinician with overall responsibility for the patient's case", section 34(1) of the MHA 1983), a patient is entitled to opt for the best reasonable care and treatment, rather than have to make do with the lowest reasonable standard of such care and treatment, which it is said is the extent of the NHS's statutory responsibility.
  7. The judge below, His Honour Judge Platts, sitting as a judge of the High Court, agreed with Mr Coombs (reported as [2012] EWHC 521 (QB)). He accepted, in accordance with the Trusts' submissions, that a detained patient is in a very different position from a patient who is not subject to compulsory detention, and that the power of choice lies, so far as placement is concerned, with the managers of the hospital where he is currently detained, and, so far as treatment is concerned, with the responsible clinician. Nevertheless, whereas decisions will always lie, therefore, with the authorities, the patient with funds to command will have opportunities to increase the options available to the authorities to improve the standard of his care and treatment. "All he is choosing to do is provide the money to facilitate placement or treatment, which is deemed appropriate by the detaining authority" (at para [63]). Difficulties might arise because of the vulnerability of such patients, or in circumstances where funding could break down, or in managing expectations and the like: but such difficulties were neither insuperable, nor uncommon in any event. There was no statutory impediment, nor any requirement of public policy, which prevented such a conclusion.
  8. On this appeal, the parties essentially repeat and elaborate their submissions below. The Trusts say that the judge got it wrong; Mr Coombs says that he was right.
  9. I will begin with the statutory framework.
  10. The National Health Service Act 2006

  11. The essence, at any rate for present purposes, of this huge Act (the "2006 Act") is contained in sections 1, 3 and 4. Section 1 ("The Secretary of State's duty to promote health service"), places on the Secretary of State the duty to promote a comprehensive health service designed to secure improvement of "physical and mental health", and to secure the provision of the necessary services to do so. Section 1(3) provides:
  12. "(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."

    Section 3 ("Secretary of State's duty as to provision of certain services") states the duty to provide inter alia hospital accommodation and medical services "to such extent as he considers necessary to meet all reasonable requirements". Section 4 makes it clear that such hospital accommodation and medical services include those necessary for persons liable to be detained under the MHA 1983 including those liable to be detained under conditions of high security.

  13. Ms Jenni Richards QC, on behalf of the Trusts, relies heavily on section 1(3). She submits that this subsection makes it impossible for a detained patient or his family to contribute in any way to his care or treatment. That submission depends, however, on the hypothesis that the NHS is both (a) the sole and exclusive provider of accommodation and medical services to patients detained under the MHA 1983, and (b) unable to charge for any of the services it provides or commissions. Hypothesis (a), however, is at this stage assumed. It remains to be seen if it is made good by reason of anything under the MHA 1983. The sections of the 2006 Act referred to above deal with accommodation and medical services generally, whether for the general public or for those using psychiatric services voluntarily under the MHA 1983 or for those detained under that Act. The only distinction made is in respect of "high security psychiatric services", (ie where detained patients require treatment under conditions of high security "on account of their dangerous, violent or criminal propensities", as to whom section 4(4) states that "High security psychiatric services may be provided only at hospital premises at which services are provided only for" such persons.
  14. Moreover, we know that persons generally can avail themselves of private medical services and are not required to go to the NHS as a sole provider of such services. It is for that reason that case law and statute has had to develop special rules in relation to personal injury claims in such situations. Thus, although the NHS is available for personal injury claimants who, if they choose to avail themselves of its services, will not be able to make a double recovery from the tortfeasor in respect of such care and treatment, they are nevertheless entitled to opt for private funding, in which case the tortfeasor concerned will remain liable for the relevant costs: see Peters v. East Midlands Strategic Health Authority [2009] EWCA Civ 145, [2010] QB 48. Moreover, in order to protect the public purse in those cases where the claimant opts for NHS provision, the NHS provider is entitled to reclaim charges for treatment and ambulance services from a tortfeasor: see section 150 of the Health and Social Care (Community Health and Standards) Act 2003.
  15. As for hypothesis (b) above, section 1(3) of the 2006 Act itself acknowledges that the NHS may charge for its services where expressly allowed. Examples are to be found in Part 9 of the 2006 Act (sections 170ff). I asked Ms Richards about the well-known fact that private room accommodation was available at a price in NHS hospitals. She was not sure how that came about, and wondered whether that arose by reason of private companies leasing space in NHS hospitals. The answer is, I think, to be found in section 189 of the 2006 Act (originating in earlier legislation) which allows the secretary of state to authorise accommodation to be made available for patients on an appropriate commercial basis. Moreover, "top-up" private care can be provided at NHS hospitals: the matter is discussed in a Department of Health "Guidance on NHS patients who wish to pay for additional private care". The current, revised, guidance came into force on 23 March 2009. It is unnecessary to cite from it at length. An executive summary records that NHS organisations should not withdraw NHS care simply because a patient chooses to buy additional private care, but such private care must be delivered separately from NHS care (such as in the NHS hospital's private wing or amenity beds, at para 4.2); however, the NHS must never charge for NHS care except where there is specific legislation to allow it to do so, and the NHS should never subsidise private care.
  16. The Mental Health Act 1983

  17. Ms Richards took us through the MHA 1983 in detail. Part II is concerned with detained patients who come through what has been called the "civil route". Part III is concerned with "Patients Concerned in Criminal Proceedings or under Sentence". In the case of Part II, detention arises as the result of an application made by two approved mental health professionals, and there is an opportunity for the "nearest relative" to object (section 11). In the case of Part III, detention arises by order of a criminal court. Section 3 (in Part II) provides that the grounds of admission are that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive treatment in hospital, where that treatment cannot be provided unless he is detained and appropriate medical treatment is available. Periodic reviews, first of 6 months and then of a year, have to take place (section 20). The detained patient is not free to leave: he can only be discharged by order of the responsible clinician, the managers of the hospital, his nearest relative (subject to the power of the responsible clinician to override the nearest relative), or a mental health tribunal (sections 23 and 72). Section 37 is the section in Part III under which a person convicted in a criminal court may be detained in a mental hospital on the order of that court (a "hospital order"): it requires the evidence of two registered medical practitioners that the offender is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in hospital where appropriate medical treatment is available for him, and the opinion of the court that the making of such an order is the most suitable method of disposal. Section 40 provides that such a person detained under a section 37 hospital order shall be treated "as if" he had been admitted under Part II. Section 41 permits the court to restrict discharge from hospital, in which case the offender cannot be discharged without the consent of the secretary of state. Under section 47 a prisoner can be removed by direction of the secretary of state from prison to hospital (a "transfer direction"), in which case the transfer direction shall have the same effect as a section 37 hospital order. Section 39 allows the criminal court which is minded to make a hospital order to request the local NHS authority for the area where the offender resides or last resided to furnish the court with information about hospitals where the offender could be admitted (including hospitals specially suitable for minors).
  18. Ms Richards submits in the light of these provisions that detained patients under both Part II and Part III must be treated the same. The judge agreed.
  19. There is no express language in the MHA 1983 which has been drawn to our attention which deals with the preliminary issue in this litigation. The issue depends therefore on what is said to be the necessary consequences of the statutory regime and/or public policy. In this connection Ms Richards draws our attention to section 35(8). Section 35 is the first of the sections which fall under Part III and is headed "Remand to hospital for a report on accused's mental condition". It is concerned therefore with an accused who is within the criminal justice system but has neither been convicted nor been detained by a hospital order as a disposal following conviction. Such an accused may not be remanded to hospital "for more than 28 days at a time or for more than 12 weeks in all" (section 35(7)).
  20. Section 35(8) provides:
  21. "An accused person remanded to hospital under this section shall be entitled to obtain at his own expense an independent report on his mental condition from a registered medical practitioner or approved clinician chosen by him and to apply to the court on the basis of it for his remand to be terminated under subsection (7) above."

    Ms Richards observes that this is the only place in the MHA 1983 where there is any mention of anything being done for a person detained in a mental hospital "at his own expense". She submits that this demonstrates that otherwise there is no opportunity for any payment being made for treatment or care on behalf of a detained patient.

  22. In my judgment, however, this subsection is of little assistance. The context is of a remand under the direction of a criminal court for the purposes of obtaining a report on an accused's mental condition. Such a report is clearly being obtained as part of the process of criminal justice. In that context it is specified that the accused may nevertheless obtain his own "independent report": but that must be done "at his own expense". In other words, it is emphasised that this is not to be done at the state's expense.
  23. It is common ground that the responsible clinician has ultimate control over the treatment of a detained patient, and that no request by the patient or his family can override the responsible clinician's treatment decisions. (I bear in mind that certain forms of treatment require consent and a second opinion (see section 57, under Part IV which is concerned with "Consent to Treatment")). It is also common ground that a patient under the MHA 1983 may be detained in a private hospital and not necessarily in a NHS hospital, as is occurring in the case of Mr Coombs.
  24. A detained patient under Part II may be granted by his responsible clinician leave of absence from hospital, and such leave may be granted "either indefinitely or on specified occasions or for any specified period" (section 17(2)) and subject to any conditions considered necessary (section 17(1)).
  25. The Prisons Act 1952

  26. Section 51 of the Prisons Act 1952 provides:
  27. "51. All expenses incurred in the maintenance of prisons and in the maintenance of prisoners and all other expenses of the Secretary of State incurred under this Act shall be defrayed out of moneys provided by Parliament."

  28. Ms Richards submits that the effect of this section is that a prisoner may not provide for his own maintenance or care at his own expense. She submits that a detained patient in a mental hospital is precisely analogous to a prisoner. On the other hand, Mr Spencer submits that the absence of similar language in the MHA 1983 cuts in favour of his argument.
  29. I am doubtful that either submission is of any real assistance. The function of detention in the case of a prisoner is punishment. The function of detention in the case of a patient, however, is as a necessary adjunct to therapy. The analogy therefore breaks down. Moreover, section 51 says nothing expressly about whether or not a prisoner (or his family) can provide anything for him. I suspect that other provisions of the prison regime curtail those possibilities. It seems to me that section 51 is dealing with another matter, which is the obligation of the secretary of state to obtain from Parliament the costs of maintaining prisons and prisoners.
  30. Discussion

  31. We have been referred to a number of authorities, but it is common ground that none of them are in any way determinative of the issue before the court.
  32. In In re S-C (Mental Patient: Habeas Corpus) [1996] QB 599 at 603E Sir Thomas Bingham MR observed that mental patients –
  33. "present a special problem since they may be liable, as a result of mental illness, to cause injury either to themselves or to others…Powers therefore exist to ensure that those who suffer from mental illness may, in appropriate circumstances, be admitted to mental hospitals and detained. But, and it is a very important but, the circumstances in which the mentally ill may be detained are very carefully prescribed by statute…"

  34. In The Queen v. Broadmoor Special Hospital Authority [1998] COD 199 Auld LJ spoke in terms of the control maintained over detained patients:
  35. "Detention for treatment necessarily implies control for that purpose. If any authority were needed for that proposition in this context, it is to be found in the reasoning of Lord Widgery CJ and of Lord Edmund-Davies in R v. Bracknell Justices, ex p. Griffiths [1976] AC at 318E-G, DC, and 335E-H, HL, respectively, when construing the statutory predecessor of the 1983 Act. Both statutes leave unspoken many of the necessary incidents of control flowing from a power of detention for treatment, including: the power to restrain patients, to keep them in seclusion (cf R v. Deputy Governor of Parkhurst Prison, ex p. Hague [1992] 1 AC 58, HL), to deprive them of their personal possessions for their own safety and to regulate the frequency and manner of visits to them (though not the power of compulsory treatment, for which the 1983 Act now expressly provides in Part IV). Lords Widgery and Edmund-Davies were of the clear view that the power of detention and treatment necessarily carried with it a power of control and discipline."

  36. In R(F) v. Oxfordshire Mental Health NHS Trust [2001] EWHC Admin 535 it was common ground that the claimant was no longer required to be detained in conditions of high security at Broadmoor and could be transferred to a medium secure unit. The dispute was whether she should be moved to a unit at Manchester, which her responsible clinician thought would be in her best interests, or to a unit in Oxford, which other clinicians insisted would be clinically better. The trust's position was that it did not have the funds to support the transfer to Manchester, and that was supported by a mental health review tribunal. Upon judicial review, Sullivan J dismissed the application on the grounds that the statutory duty on the trust was limited by resource implications. He reasoned the matter as follows:
  37. "60. The starting point has to be the 1977 Act[1]. Health authorities owe the same "target" duty under section 3 to those who suffer from physical or mental illness. While some patients in the latter category will be compulsorily detained in hospital under Part II or Part III of the 1983 Act, I do not consider that this factor alters the underlying "target" duty. The 1983 Act does not expressly provide for an "enhanced" duty towards those suffering from mental illness who are not compulsorily detained…
    63. It is true that in the case of patients compulsorily detained in hospital under Parts II and III, the RMO[2] has a particular statutory role to play. In essence, the RMO is placed in the same position as that of any consultant overseeing his/her patient's treatment. The statutory provisions are those which are necessary to ensure that the RMO is placed in that position in respect of patients who are unwilling or unable, because of their illness, to give informed consent to their treatment. Consultants have to discharge their professional responsibilities to their patients within the constraints of the facilities, hospital beds, operating theatres, nursing staff, et cetera, that are made available by health authorities and health trusts. I can see no reason why RMOs should not likewise be able to exercise their specific responsibilities under the 1983 Act within the same practical constraints.
    64. Treatment is provided to all patients in the real world where the availability of facilities is constrained by resources. By way of example, the RMO may well consider that it would be beneficial for a particular Part II or Part III patient if he/she were given better facilities whilst in hospital: more privacy, more spacious accommodation, access to particular therapy, more attention by the nursing staff, etc. There is nothing in the 1983 Act to suggest that the health authority must then provide those facilities. Insofar as the 1983 Act confers additional powers on the RMOs, it does so vis-à-vis the RMO's patient, not the health authority…
    67. The distinction between the patient detained under Part II or Part III of the 1983 Act and other "voluntary" patients, whether mentally or physically ill, is one which would be obvious to the lawyer concerned with civil liberties. It would be rather less obvious to the "voluntary" patient…
    76. For the reasons set out above, I am satisfied that the Forum's decision was a funding decision. The health authority had to act fairly, but such decisions involving the allocation of scarce resources where granting one request will inevitably mean refusing others should not be judicialised…"

  38. In R(A) v. Partnerships in Care Ltd [2002] EWHC 529 (Admin), [2002] 1 WLR 2610 the patient was detained under Part II of the MHA 1983 in a private psychiatric hospital run by the defendants. The claimant complained about a change of focus of treatment undertaken in her ward. It was held that, although the hospital was private, it was a functional public authority for the purposes of section 6 of the Human Rights Act 1998, and that therefore the claim could proceed to review on the merits. In the course of his judgment Keith J said this about the relationship of private mental hospitals and the medical authorities (at para [17]):
  39. "In its corporate capacity as the body which owns and runs the hospital, the defendant may be a private company run on commercial lines, free to admit whichever patients it chooses. But in its statutory capacity as manager of the hospital, the defendant is a body upon whom important statutory functions have devolved, albeit as a result of the contractual arrangements which it has made with the health authorities to which the responsibility for the care and treatment of those of the hospital's patients who are not being treated privately have been delegated by the Secretary of State under the 2001 Regulations[3]."

  40. In Regina (K) v. West London Mental Health NHS Trust [2006] EWCA Civ 118, [2006] 1 WLR 1865, the Court of Appeal approved Sullivan J's decision in F: the secretary of state was not bound by the responsible clinician's clinical judgment nor obliged to use best endeavours to give effect to it: see per Dyson LJ at paras [56] – [61].
  41. In Savage v. South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [2009] 1 AC 681 the issue was as to the obligations imposed on hospital authorities by article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in a case where the detained patient had committed suicide. Lord Rodger stressed the vulnerability of "prisoners, voluntary patients and detained patients" (at para [49]). Baroness Hale of Richmond also stressed the loss of detained patients' control over their own lives. She said (at para [97]):
  42. "In the case of patients admitted under the civil powers in part II of the Act, this may be for the sake of health or safety or for the protection of other persons. Other patients are admitted on the orders of a criminal court or transferred from prison by the Secretary of State for Justice. All of these patients have been deprived of their liberty within the meaning of article 5 of the Convention. All are under the control of the hospital (or in the case of restricted patients, the Secretary of State). They may not leave when they wish to leave. Their visits and correspondence with the outside may be controlled. They may be given most forms of treatment for their mental disorder without their consent (although special safeguards apply to some treatments). They may be detained in a wide variety of settings, ranging from high security institutions such as Broadmoor to open wards from which it is relatively easy to escape. But they cannot choose where they are placed. They cannot choose their medical treatment. In short, although their circumstances may be a great deal pleasanter than those of other detainees, they are deprived of more of their ordinary civil rights than are other detainees."
  43. In R (N) v. Secretary of State for Health [2009] EWCA Civ 295, [2009] HRLR 31 the appellants were detained in a high security hospital at Rampton and sought, unsuccessfully, to quash on human rights' grounds regulations which prevented their smoking on their ward. They argued that their ward was their home. In the course of his judgment Lord Clarke of Stone-cum-Ebony MR said this:
  44. "[39] Since the question cannot be answered simply by focusing on the nature of the activity we start by considering the nature of the place in which the appellants seek freedom to smoke. The Trust has accepted that Rampton is the appellants' home. Patients are detained there and have nowhere else to conduct their personal affairs or develop as human beings.
    [40] But Rampton is not the same as a private home and the distinction is of significance. It is a public institution, operated as a hospital under s. 4 of the 2006 Act. Supervision is intense for safety and security reasons. All high-risk and newly-admitted patients are subject to a high degree of observation at all times…
    [41] The degree to which a person may expect freedom to do as he pleases and engage in personal and private activity will vary according to the nature of the accommodation in which he lives: see [102] of the judgment of the Divisional Court. If one assumes for the purposes of argument, that Baroness Hale is wrong and that any activity within a private home is protected from arbitrary interference, it does not follow that the same activities within a public hospital where patients are detained are similarly protected."

  45. Later in his judgment, Lord Clarke said this:
  46. "[63] Patients detained in Rampton are subject to a large number of restrictions which prevent them from doing things which they can do at home, in a care home, at a hotel or (in some respects) in prison. They include restriction on free movement, sexual relations, drinking alcohol, access to explicit pornographic material, contact within Rampton and externally, relationships with others, food and other items being sent or brought within the hospital and keeping possessions. Patients are also subject to random and routine searches, examination and correspondence and testing for illicit substances."

  47. Finally, in Rabone v. Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72 the issue was whether the state's article 2 duty extended not only to detained patients but also to the case of a voluntary patient who had committed suicide. It was held that it did. Lord Dyson JSC said this:
  48. "[28] As regards the differences between an informal psychiatric patient and one who is detained under the MHA, these are in many ways more apparent than real. It is true that the paradigm of a detained patient is one who is locked up in a secure hospital environment. But a detained patient may be in an open hospital with freedom to come and go. By contrast, an informal patient may be treated in a secure environment in circumstances where she is suicidal, receiving medication for her mental disorder which may compromise her ability to make an informed choice to remain in hospital and she would, in any event, be detained if she tried to leave. Informal in-patients can be detained temporarily under the holding powers given by section 5 of the MHA to allow an application to be made for detention under section 2 or 3 of the MHA. The statutory powers of detention are the means by which the hospital is able to protect the psychiatric patient from the specific risk of suicide."

  49. These authorities, variously relied on by both parties, are of only indirect assistance. However, in my judgment they do at least demonstrate the following. First, analogies may be made for many purposes. When it comes to assessing the vulnerabilities of detained patients and thus the state's responsibilities for them, it is relevant to refer to their lack of control over their own lives. In such a context it is understandable that the analogy of prisoners is apposite. Even in that context, however, Rabone shows that informal patients may suffer similar vulnerabilities and that the state owes similar responsibilities to them. Secondly, despite the apposite analogy with prisoners, nevertheless for many purposes it remains equally important to remember that detained patients are in hospital because of mental disorder and in order to treat them therapeutically, not for the purposes of punishment. Thus, within the necessary restraints, it may be appropriate to recall that the hospital is their home. Thirdly, when it comes, however, to concentrate on the state's responsibility to detained patients with respect to their treatment and care, the cases underline the similarity of such patients with all others who are entitled to look for help from the NHS: they are entitled to the same duty as all who may suffer physical or mental illness. Fourthly, private mental hospitals exist which may contain detained patients, that is to say patients detained under the provisions of the MHA 1983, who may be either private patients or patients for whom the state has NHS duties of care which it meets by buying in private services.
  50. In these circumstances, it seems to me that there is nothing inherent in the structure or wording of the MHA 1983 or the 2006 Act, and nothing by way of public policy, to exclude absolutely the possibilities of detained patients (or their family or others holding responsibility for looking after their assets) paying for or contributing in part to the cost of their treatment or care. Presumably, private patients detained in a private hospital do exactly that. Detained patients who are being looked after by an NHS authority will have most, if not all, of their costs funded by the state: but even in their case, it may be possible, as in the case of any patient within the NHS system, to purchase private accommodation or other top-up care facilities available within the applicable Guidance. Of course, it will not be possible to provide for care or treatment which is in conflict with the recommendations of the responsible clinician. Nor may it always or perhaps even often be possible within the NHS system to purchase additional care or treatment facilities without running into the principle of free provision and the limitations upon the exceptions to that principle. However, the cases cited above show that responsible clinicians may recommend treatment or care which the NHS is not under a duty to provide, because it goes beyond its statutory duty. There seems to me no reason in statute or public policy why there should be an absolute bar on the provision of facilities, recommended by or consistent with the recommendations of the responsible clinician, which may be available at a price, within or without the NHS system.
  51. Ms Richards submits, as she did below, that private payment may create difficulties of a practical nature, as where private funding previously available breaks down. However, as the judge said, such difficulties of funding may always raise their head, and do not create public policy bars of their own.
  52. It seems likely that the same answer is applicable whether the detained patient has a claim against a tortfeasor or whether it is simply a matter of a personal choice to pay. Similarly, it seems also quite possible that even detained patients under Part III have to be assimilated for these, as for other purposes, with detained patients under Part II. However, it is not necessary in this case to determine those matters. It is sufficient to say, in the case of this claimant, who is a detained patient within Part II of the MHA 1983 and has a claim against admitted tortfeasors, that the answer to the issue posed, namely whether there is anything in public policy or otherwise which prevents him paying for his own care or treatment, is No.
  53. Conclusion

  54. I would therefore dismiss this appeal, for the reasons given in this judgment.
  55. Lord Justice Aikens:

  56. I agree.
  57. Lady Justice Black:

  58. I also agree.

Note 1   The forerunner of the 2006 Act    [Back]

Note 2   RMO: the responsible medical officer, the previous title given to the responsible clinician    [Back]

Note 3   Now the National Health Service (Functions of Strategic Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002    [Back]


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