Mr. JUSTICE SILBER:
- On 31 October 2011, the Immigration Rules (HC385) ("the Rules") were amended so as to insert an immigration sanction which could be imposed on some people not resident in the United Kingdom seeking to enter or to remain in the United Kingdom, who had unpaid NHS debts of at least £1000, but which were not incurred for accident and emergency services, family planning services and the treatment of illnesses/infections with public health implications. The immigration sanctions that can be imposed on those non-residents on account of that indebtedness are that their applications for entry clearance, leave to enter the United Kingdom as well as for leave to remain would then "normally" be refused.
- There is no challenge to the legality of the regime, because the challenge of the claimants now relates to the way in which certain specified limited items of information relating to the non-resident patient ("the specified limited information") is transmitted by the NHS trusts and the NHS foundation trusts (which I will refer to collectively as "the NHS bodies"), which had provided the medical services, to the Secretary of State for Health ("the Secretary of State") who then passes it on to the Home Office, which would then, "normally" impose an immigration sanction on the person seeking to enter or to remain in the United Kingdom who had those unpaid debts. The specified limited information comprises the name and date of birth of the patient and where available his or her address, nationality and travel document number with expiry dates as well as the amount and date of the debt and the NHS trust to which it is owed. It is said not to be more intrusive than the information which NHS bodies would pass to the debt collection agencies which they use.
- The Claimants (with the exception of W) are persons with an interest in the regime either because they have been charged or because they are liable or are potentially liable to charging. Their counsel, Mr David Wolfe QC, challenges the mechanics of the regime on the grounds that:-
(a) There is no power first for the NHS bodies to pass on the information to the Secretary of State, or for him then to pass it on to the Home Office for a number of reasons including the confidential nature of this information ("The Vires Issue"); and
(b) Even if there is such power, the Guidance issued by the Secretary of State in the "Guidance implementing the Overseas Visitors Hospital Charging Regulations" ("the Guidance") is unlawful because it purports to require the NHS bodies to share data whereas the NHS bodies should have a discretion whether or not to do so ("the Fetter Issue").
- He seeks declaratory relief that the immigration sanction regime is flawed because of those grounds.
- Ms Marie Demetriou QC, counsel for the Secretary of State, together with and supported by Ms Julie Anderson, counsel for the Secretary of State for the Home Department ("the Home Office"), contend on the Vires Issue that there is power first, on the part of the NHS bodies to transmit the specified limited information relating to the patient to the Secretary of State, and then second, on the part of the Secretary of State, to pass it on to the Home Office. It is denied that the specified limited information is confidential or private, but if it is, the requisite balancing exercise shows that it is permissible for it to be transmitted.
- Ms Demetriou and Ms Anderson submit on the Fetter Issue that the Guidance was not unlawful because it gave discretion to the NHS bodies or if it did not give discretion, there were good and valid reasons for not doing so and so it was not wrongful. Not surprisingly, Ms Demetriou and Ms Anderson both adopted each other's submissions and I will refer to those submissions as "the Defendant's submissions", although Ms Demetriou made the overwhelming majority of submissions. I am grateful to all counsel for their helpful oral and written submissions.
- Permission to pursue this claim was given by Arden LJ after Collins J had refused permission after an oral hearing. The handing-down of this judgment had to be postponed for some weeks at the request of counsel because of their unavailability.
II. The Parties
- I will summarise the positions of the Claimants very briefly because the determination of this application does not depend on their dealings with the health and immigration authorities or their particular issues but rather it is a challenge to the mechanics of the immigration sanction regime. With the exception of the First Claimant, W, whose situation has changed over the course of the proceedings and now has limited leave to remain, all the Claimants are persons with an interest in the regime either because they have been charged, or are liable or potentially liable to be charged for medical services.
- X and her family are "overstayers" with no basis at present for remaining in the United Kingdom, except that they have an outstanding claim under both the Immigration Rules and Article 8 of the ECHR that was at the time of the hearing due to be heard by the First-Tier Tribunal. X had to commence judicial review proceedings in order to ensure that the Home Office considered her claim and issued the decision to which she was entitled. If this had not occurred, X and her family would have been in a position of limbo with an arguable immigration claim awaiting consideration as well as being liable for NHS charging which they could not pay.
- Y also had his immigration claim refused and is awaiting a Tribunal appeal. He is therefore lawfully here but is liable to immigration sanctions because he had medical services.
- Z had an entry clearance to visit the United Kingdom lawfully to see her husband, but she was refused leave to enter apparently on the basis that she was pregnant and she was detained. She was later released and had her child in December 2011, but she was liable to charging for the maternity treatment she received. Her NHS debt of £2,550 for that treatment was communicated to UKBA and which showed the nature of the treatment that she received, but it is accepted that this was obviously unlawful. The Home Office refused her application relying in part on the NHS debt and she had or has an appeal against that decision.
- It is also said that apart from her substantive immigration claim, Z's refusal of leave to enter was "not in accordance with the law" and so it is liable to be overturned if the present claim is successful. This, according to her counsel, is because part of her refusal of leave depended on illegal data sharing which is part of the immigration sanction regime.
III. The Charging of Non-Residents for Medical Services
The duty to provide free health services and the right to charge
- The Secretary of State has a number of general duties in relation to the promotion and provision of the health service in England, which are set out in s. 1 of the National Health Service Act 2006 ("NHSA 2006"), which together with other relevant statutory material is set out in the Appendix to this judgment. That section includes (with emphasis added) duties on the part of the Secretary of State:-
"(1) [to] continue the promotion in England of a comprehensive health service designed to secure improvement (a) in the physical and mental health of "the people of England"; and
"(2)… [to] exercise the functions under the [NHSA 2006] to secure that services are provided in accordance with the [NHSA 2006]".
- The general rule is that the health services provided in England have to be free of charge, but that rule is subject to the exception, which is contained in s. 1(3) NHSA 2006 and which states that the general rule applies:-
"except in so far as the making or recovery of charges is expressly provided for by or under any enactment, whenever passed".
- There is an express provision constituting an exception relating to non-residents which is contained in s.175 NHSA 2006 and which allows the Secretary of State to make regulations:-
"provid[ing] for the making and recovery, in such manner as may be prescribed, of such charges as the Secretary of State may determine" for services provided under the NHSA 2006 to persons "not ordinarily resident in Great Britain".
- Section175 (4) of the NHSA 2006 gives the Secretary of State the power to calculate such charges on any basis that "he considers to be the appropriate commercial basis". This is consistent with the statutory purpose of providing a health service for "the people of England" in s.1 (1) (a) NHSA 2006, and not of providing an international health service.
- This power to make charges for medical services given to non-residents was first exercised in 1982 and the current exceptions are set out in the National Health Service (Charges to Overseas Visitors) Regulations (2011 SI 2011/1556, as subsequently amended in 2012) ("the Charging Regulations"). The Guidance, the terms of which are the subject of the Fetter Issue, has been issued in relation to the Charging Regulations.
The rationale for the charging regime for overseas visitors
- Mr. Craig Keenan, an official at the Department of Health, has explained in a witness statement that the reason why it has been necessary to impose charges on overseas visitors for hospital treatment is that the NHS faces considerable financial pressure. Therefore by requiring NHS bodies to make and recover charges on overseas visitors for hospital services, the Secretary of State is safeguarding the NHS's limited resources, so as to be able to better fulfil his duty to secure the provision of comprehensive health services for residents.
- Mr Keenan has observed that the financial pressures on the NHS are exacerbated by the significant problems of health tourism and more often by various other misuses of the NHS. In those circumstances, it has become necessary to have an effective regime for charging overseas visitors for hospital treatment and for recovering such charges. This could be achieved either by deterring health tourists and those who intended to visit the UK without adequate insurance or resources for paying their medical charges from coming to the UK for hospital treatment in the first place or by ensuring that those who come here should be charged for such treatment. It is essential that those non-resident users of the NHS are identified and that they are then required to pay for their treatment so that NHS bodies are not left out of funds. It is pointed out by the Defendants that most other countries do not provide free healthcare to those who are not legally resident in them.
- The main relevant provisions of the Charging Regulations are that:-
i) Relevant NHS bodies, which provide hospital services, are under a duty to charge, and to recover charges from, overseas visitors who receive such services, unless the NHS trust in question determines that the overseas visitor is exempt from charges. There are, as I have explained in footnote 1 to paragraph 1, provisions which exempt certain overseas visitors from being charged;
ii) For the purpose of the Charging Regulations, overseas visitors are defined as persons "not ordinarily resident in the United Kingdom". The phrase "ordinarily resident" is interpreted by the Department of Health as meaning "for the time being, living lawfully in the UK on a properly settled basis"; and
(iii) There are exemptions from the duty to charge for accident and emergency services (which I will refer to as the "emergency services"), which are defined in paragraph 6 (a) of the Charging Regulations as covering such services, "whether provided at a hospital accident and emergency department, a minor injuries unit, a walk-in centre or elsewhere, but not including any services provided (i) after the overseas visitor has been accepted as an in-patient; or (ii) as an out patient appointment", family planning services and the treatment of illnesses/infections with public health implications. Indeed, NHS trusts are prohibited from charging for these services. Likewise, certain categories of overseas visitor – in particular, refugees, asylum seekers, children in care and persons believed to be victims of human trafficking – cannot be charged for any hospital treatment. Mr Keenan considers that this constitutes a balance between the protection of the public purse, the protection of public health and humanitarian considerations.
The NHS debt problem
- Mr Keenan explains, however, that the problem with the present charging regime for non-residents is that it is not effective and he stresses two particular problems.
- First, the NHS has difficulties in identifying accurately those overseas visitors who are not entitled to free hospital treatment. A review conducted by the Department of Health in 2012 estimated that NHS trusts identify, on average, only between 30% and 45% of all chargeable overseas visitors. A subsequent study, which was published in October 2013, estimates the relevant figure to be 43% of the chargeable overseas patients.
- Second, most NHS Trusts struggle to recover charges even from those patients whom they identify as chargeable and invoice for their treatments. The October 2013 study states that:-
"Overall, the indications are that Trusts collect about 15% of the sums that are potentially chargeable to non-EEA patients (excluding irregular migrants)."
- The consequence is that the NHS has mounting unpaid (and, most likely, unrecoverable) debts due to NHS Trusts and this has become increasingly serious over the past decade or so. The sums that NHS Trusts have had to write off in their accounts were about £2 million in 2002/03, but this sum rose to £14 million by 2010/11. The consequence of this write-off is serious as when a NHS Trust writes off a debt for an invoiced, but unrecovered, charge on an overseas visitor, that NHS Trust does not receive any compensation from the Department of Health but instead it bears the full financial loss itself. The consequences of this loss of income are obvious.
The change to the Rules and Guidance
- Mr Keenan has explained that the Department of Health and the Home Office developed proposals to apply immigration sanctions to foreign nationals with significant outstanding NHS debts seeking to enter or to remain in the UK. The purpose of such sanctions was to assist the NHS financially, in relation to the debt problem, first by supporting debt recovery and second by deterring the deliberate abuse of NHS services.
- The proposals were the subject of consultation, by both Government departments, and of impact assessments. The Department of Health's responses were published in March 2011 and the critically important change to the Immigration Rules with the introduction of immigration sanctions came into effect on 31 October 2011 with the insertion of rule 320(22) in the Rules. It provides (with emphasis added) that:-
"Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused
… where one or more relevant NHS body has notified the Secretary of State that the person seeking entry or leave to enter has failed to pay a charge or charges with a total value of at least £1000 in accordance with the relevant NHS regulations on charges to overseas visitors".
- The equivalent immigration sanction provision in relation to leave to remain and variation of leave to enter or remain is in the new rule 322(12) of the Rules.
- To enable the Home Office to implement the Charging Regulations and the changes to the Immigration Rules containing the immigration sanctions, the Secretary of State amended the Guidance on 22 December 2011 and again, subsequently, in May 2012. The passages of the Guidance that deal with the new Rules contain provisions that:-
a) NHS Trusts are "encouraged to support administration of [the new Rules] and thereby improve the recovery of their debts by providing relevant information to the Home Office" (Paragraph 2 of Appendix 7 to the Guidance);
b) NHS Trusts should inform chargeable patients in advance that if they do not pay charges for NHS treatment, then their personal information may be shared with the Home Office, via the Department of Health, and there may be immigration sanctions (Paragraphs 3 to 6 of Appendix 7 to the Guidance);
c) NHS Trusts are not to exercise judgment or discretion regarding the circumstances of individual cases, because it is made clear that a discretion is exercised, solely by the Home Office, as to whether to apply the immigration sanctions in individual cases (Paragraphs 10 and 23 of Appendix 7 to the Guidance);
d) The specified (non-medical) information that NHS Trusts should transmit about individual debtors is clearly identified (Paragraph 11 of Appendix 7);
e) Paragraph 12 of Appendix 7 emphasises that "personal medical information relating to the treatment provided must not be included. Care should also be taken not to provide information from which the clinical history of the patient can be deduced" (underlining as in original);
f) NHS Trusts are reminded in Paragraph 13 of Appendix 7 of their duty to handle the (non-medical) information set out in paragraph 11 in accordance with data protection law and the NHS Confidentiality Code of Practice. There is also the reminder in paragraph 2 of Appendix 7 about the need to "take full regard of data protection, information security and patient confidentiality duties"; and that
g) There is a clear process by which NHS Trusts should share data with the Department of Health and this requires that data be submitted securely, in accordance with information security duties, and indicate that the Department of Health's collation and onward transfer of the data to the Home Office will, likewise, be done securely and in compliance with data protection law (Paragraphs14-17 of Appendix 7).
How the data-sharing operates
- The process of the NHS trusts sharing data on unpaid debts with the Secretary of State and the Home Office has now been in operation for almost two years. It is partially explained in Appendix 7 to the Guidance and the witness statement of Mr. Craig Keenan, an official in the Department of Health, in which it is stated that: -
a) The data transmitted by the NHS trusts is in spreadsheets sent by email by means of a "Government Secure Internet account";
b) The spreadsheets contain the specified limited information;
c) The data supplied does not include any medical information but only information required to identify the individual and the sum that he or she owes;
d) The data are collated centrally by the Department of Health, which in turn sends them on to the Home Office; and that
e) It uses the information in accordance with the Immigration Rules.
IV. The Vires Issue
- The case for the Claimants is that there is no power for either the NHS bodies nor for the Secretary of State to whom the information is passed by the NHS bodies for collation purposes, before being passed on to the Home Office, to disclose any patient information without consent. The Defendants' case is that both the NHS bodies and the Secretary of State do have statutory powers to do so although those powers are not the same for each of these entities.
- Starting with the NHS bodies, it is common ground that as statutory bodies, they only have the power to do what the law permits them to do because, as Buxton LJ explained in R v Richmond LBC ex p Watson  QB 370, 385 C, "a public body can only do that which it is authorised to do by private law".
- The case for the Claimants, which is disputed by the Defendants, is that these statutory powers do not justify the onward transmission of this information from the NHS bodies because: -
i. There is a need for a specific statutory gateway for transmission of data, which would otherwise breach duties of confidentiality ("Sub- Issue 1: The Confidentiality Issue ");
ii. It is impermissible to rely on general powers where a more specific code exists relating to transmission of information, such as is contained in s251 NHSA 2006 ("Sub-Issue 2:The General Powers Issue"); and because
iii. The transmission of the data is insufficiently connected with the relevant statutory function so to permit its transmission ("Sub-Issue 3: The Insufficient Connection Issue").
V. Sub-Issue 1: The Confidentiality Issue
- The central theme of Mr. Wolfe's submissions is that:-
a) The information identifying a particular non-resident patient, the fact that this person received medical treatment, as well as the date and cost of it is confidential; and that
b) The transmission of that patient's confidential information would infringe his or her rights to keep this material confidential particularly as "a specific statutory gateway" would have been required for such transmission to have been lawful, but there is no such gateway.
- The Defendants dispute these submissions and contend that:-
a) The specified limited information communicated by the NHS bodies relating to first the identity of the debtor to the NHS, and second the existence of the debt is neither confidential nor private;
b) In any event even if that was wrong and the information was confidential, its confidentiality was so marginal that it was easily out- weighed in the requisite balancing exercise, by among other factors, its limited nature, its limited circulation and the public interest in disclosing the default in making payment to the Home Office in the light of the Charging Regulations with the result that the transmission by the NHS was permissible, and in any event
c) There is sufficient justification for the transmission of the material even if confidential and there was no need for a specific statutory gateway.
Is the information being transmitted to the Secretary of State and then to the Home Office confidential?
- The specified limited information that is being so transmitted under the Guidance and the immigration sanction scheme concerning overseas patients who have outstanding debts of £1000 or more is extremely limited as I have explained. To repeat, the specified information that is transmitted is only first, the name and date of birth of the debtor patient; second, his or her address, nationality and travel document number; third, the amount and date of the debt; and finally the NHS body to which the debt is owed. It is very significant that the information transmitted does not include details of first the debtor patient's medical history, second why the debtor patient sought medical treatment, third the treatment received or its nature or fourth, indeed anything about the patient's health. As I have explained, Paragraph 12 of Appendix 7 emphasises that:-
"personal medical information relating treatment provided must not be included. Care should also be taken not to provide information from which the clinical history of the patient can be deduced" (underlining as in original).
- This information is contained and set out in spreadsheets, which are sent by email. Only spreadsheets from secure email accounts will be accepted by the Secretary of State. The spreadsheet is sent by email via a "Government Secure Internet" account.
- The case for the Claimants is that these spreadsheets communicate confidential information about the health of those referred to on them. Mr. Wolfe relies on a number of statements in Government and professional literature and guidance, which he submits show that information identifying a patient, the fact that treatment was given as well as the cost and date of that treatment all constitute confidential information of the patient.
- Such statements are to be found in, for example, the General Medical Council's Standard and Ethics Guidance for Doctors, which deems all personal information to be confidential. There are other similar statements in the NHS Care Record Guarantee which I have considered in paragraph 65 below. Similarly, the British Medical Association's "Confidentiality and Disclosure of Health information tool kit" defines confidential information as including: -
"all identifiable patient information [covering among other matters] it covers any clinical information about an individual's diagnosis or treatment…who the patient's doctor is and what clinics patients attend and when…anything else that may be used to identify patients directly or indirectly so that any of the information [set out above], combined with the patient's name or address or full post code or the patient's date of birth, can identify them".
- There are many judicial observations stressing the importance of preserving the confidentiality of a patient's health data such as the observations of the European Court of Human Rights in Z v Finland (1997) 25 EHRR 371, which was a case in which there was a successful challenge on Article 8 grounds to an order making accessible to the public the applicant's medical records and the transcripts of the evidence given in a criminal trial of the applicant's husband by her medical advisers relating to her health. The Court stated at pages 405 to 406 that:-
"95…Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community."
- In order to determine whether information communicated is confidential and therefore cannot be transmitted, it is necessary to examine and apply the approach explained by the House of Lords in Campbell v MGN Ltd  2 AC 457. In that case, a majority (Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell) allowed the appeal of the Claimant who had claimed that details of her drug addiction treatment and photographs of her leaving self-help group meetings constituted an unjustified infringement of her right to privacy.
- Lord Hope of Craighead explained that the issue of whether the right of privacy had been infringed was resolved by considering not the mind of the reader of the information but:-
"of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity" .
- He then observed that: -
"100…the objective test was correctly described and applied by Nicholson J [in (P v D  2 NZLR 591)] at p 601, Para 39 when he said:
'The factor that the matter must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities prescribes an objective test. But this is on the basis of what a reasonable person of ordinary sensibilities would feel if they were in the same position, that is, in the context of the particular circumstances. I accept that P has the stated feelings and consider that a reasonable person of ordinary sensibilities would in the circumstances also find publication of information that they had been a patient in a psychiatric hospital highly offensive and objectionable.'
That this is the correct approach is confirmed by the [American Law Institute Restatement of the Law, Torts, 2d , p 387, which states at the end of its comment on clause (a) of para 652D:
'It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it that the cause of action arises'" [Emphasis added]
- Baroness Hale observed that "an objective reasonable expectations test is much simpler and clearer" , while Lord Carswell  agreed with the other two members of the majority. All three members of the majority attached importance to the need to carry out a balancing exercise before deciding whether publication was permissible if the information was confidential. Lord Hope quoted with approval the well-known statement of Sedley LJ in Douglas v Hello! Limited  QB 967, 1035 that:-
"135…Everything will depend on the proper balance between privacy and publicity in the situation facing the court".
- The nature of the medical information disclosed is of importance and it was accepted that some information about a person's health could not be confidential. Indeed, Baroness Hale explained in Campbell (paragraph 157) first, that not every statement about a person's health will carry the badge of confidentiality or risk doing harm to that person's physical or moral integrity, and second, that the fact that a public figure has a cold or a broken leg is unlikely to be a matter of such significance to justify restricting that press freedom to report it. She observed at paragraph 137 that "once the information is identified as 'private' …the court must balance the claimant's interest in keeping the information private against the countervailing interest of the recipient in publishing it". The case for the Defendants is that the transmitted information falls into the category of not being "private", but that is disputed by Mr. Wolfe. It is appropriate to deal first with this issue which does not consider whether the disclosure might be justified.
Is the information which has to be transmitted confidential or private?
- The specified limited information transmitted by the NHS bodies falls at the least intrusive end of the spectrum of medical information, because it omits details of the illness or the medical history of the non-resident patient or the treatment administered or the prognosis for that patient. It is stated in paragraph 2 of Appendix 7 of the Guidance that the provision of the information by NHS bodies "must take full regard of data protection, information security and patient confidentiality issues". Further, as I have explained, it is made clear in paragraph 12 of Appendix 7 to the Guidance (with emphasis added) that :-
"..personal medical information relating to the treatment provided must not be included. Care should be taken not to provide information from which the clinical history of the patient can be deduced".
- This would suggest that the limited information being transmitted was not confidential or private. I am fortified in reaching that conclusion by Ms. Demetriou's submission that the information being transmitted from the NHS bodies is no different from the material which could be, and would be, supplied on a routine basis by such entities to a debt-collecting agency. Mr. Keenan explains that in order to recover charges from overseas visitors, NHS Trusts have for many years routinely used the services of specialist debt collection agencies with whom the trusts have shared non-medical data which would be of the kind transmitted by NHS bodies pursuant to the Guidance. Indeed, paragraph 23 of Appendix 7 of the Guidance states that one of the responsibilities of NHS bodies is "to mandate the agency that may manage debt recovery on their behalf to manage the debt information handling process". It is difficult to see why debt collection agencies can be given details of the patient's unpaid medical bills, while that at the same time it is somehow not permissible to transmit it securely to other organs of government whose employees are bound by strict rules of confidentiality and who received the information transmitted in confidence as I explained in paragraph 36 above.
- So pulling those threads together, the specified limited information being transmitted does not include any medical information about the patient's health, but simply only information required to identify the individual and the sum he or she owes. So the information transmitted from the NHS bodies is very different from the information which was held to have been improperly disclosed in the Campbell case and which related to first, the fact that Ms Campbell was receiving treatment at Narcotics Anonymous; second, the details of the treatment she received, how long she had been attending meetings, how often she went, how she was treated within the sessions themselves, the extent of her commitment, and the nature of her entrance on the specific occasion; and third, a visual portrayal of her leaving a specific meeting with other addicts.
- Similarly the Claimants in this case cannot derive any assistance from the actual factual decision of the European Court of Human Rights in Z v Finland (1997) 25 EHRR 371 in which, as I have explained, it was held that the order given to make accessible to the public transcripts of the evidence given by the applicant's medical advisers on her health and her medical records was a violation of her Article 8 rights.
- In this case, the transmission of the patient's limited details as set out in the specified limited information cannot be regarded as a disclosure of matters of a confidential nature, because it omits details of the medical history or the illness of the non-resident patient or the treatment administered. It is noteworthy that in paragraph 2 of the Introduction to the publication, "Confidentiality:NHS Code of Practice Supplementary Guidance: Public Interest Disclosure" (November 2010), it is stated that decisions about disclosure must be made on a case-by-case basis and that:-
"it will be easier to justify… the fact that someone attended a clinic, rather than detailed health information".
- I therefore conclude that the information transmitted does not in Baroness Hale's words "carry the badge of confidentiality or risk doing harm to that person's physical or moral integrity". So I reject the contention that the transmission by the NHS bodies of the limited evidence that has to be communicated under the Guidance was confidential and so it was not permissible for it to be transmitted.
- If I had been in doubt in reaching that conclusion, I would have held that the specified limited information could be transmitted for another reason and that is because the patient would have had the medical services in the knowledge that the specified limited information might be transmitted and then chose to have the treatment covered by the immigration sanction regime which excludes treatment in respect of accident and emergency services (which have the meaning set out in paragraph 20 (iii) above), family planning services and the treatment of illnesses/infections with public health implications. So the non-resident patient would not have been compelled to have treatment subject to the immigration sanction regime as his or her treatment was not of an emergency nature. The reason why the patient would have had this knowledge of the immigration sanction regime before agreeing to be treated is because:-
a. Paragraph 3 of Appendix 7 of the Guidance, requires the non-resident patient to have been informed that a failure to pay charge "may now result in a future immigration sanction if it remains unpaid…";
b. Paragraph 4, of Appendix 7 requires those patients covered by this regime to be "made aware or reminded [of this] at each key stage of interaction, in particular initial registration and screening for liability for NHS charges…";
c. Paragraph 5 of Appendix 7 states (with emphasis added) that "registration forms should already include extensive information on information sharing with the Home Office and other agencies. These should, however now also include reference to the immigration rules…"; and that
d. Paragraph 6 of Appendix 7 states in respect of "pre-attendance forms and invoices/ undertaking to pay documents" that they should state (with emphasis added) that:-
"If you fail to pay for NHS treatment for which charges have been levied, it may result in future immigration application to enter or remain in the UK being denied. Necessary (non-medical) personal information may be passed via the Department of Health to the Home Office for this purpose".
- These provisions constitute important evidence showing that the non-resident patients have accepted, or at least appreciated, that onward transmission of the medical information was acceptable to him or her. I should repeat that, as I have explained in footnote 1 to paragraph 1 above, the immigration sanctions regime and hence the transmission of information regime does not apply to treatment in respect of accident and emergency services (which have the extended meaning set out in paragraph 20 above), family planning services and the treatment of illnesses/infections with public health implications. So it only applies to a failure to pay for some non-emergency medical treatment. So the non-resident patient would have known about the information sharing between the NHS body and the other entities before then agreeing to be treated rather than being treated elsewhere.
The Balancing Exercise
- In case I am wrong and the specified information transmitted constitutes confidential information, I must carry out the balancing exercise which was described by Lord Hope in Campbell at page 489 in this way:-
"113… The tests which the court must apply are familiar ones. They are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy".
- There are four matters of importance which individually and cumulatively satisfy me that the balancing exercise leads to the conclusion that patient confidentiality is not being infringed by transmission to the Secretary of State and then on to the Home Office.
- The first factor is the amount of the specified limited information which is being transmitted and disclosed and which, as I have explained in paragraph 35 above, does not give details of the patient's medical history, symptoms, treatment, prognosis or indeed anything about his or her health.
- A second factor of importance in the balancing exercise is that, as I have explained in paragraphs 51 and 52 above, paragraphs 5 and 6 of Appendix 7 of the Guidance, requires the patient to have been advised of the right of the hospital to pass on information to the Secretary of State and to the Home Office before the treatment was administered. These provisions constitute important factors showing that the patients have accepted or appreciated that onward transmission of the medical information was acceptable to them and that they have then still been prepared to use the services of the NHS body.
- I should add that Mr. Wolfe also submitted that in some cases the name of the NHS body passing on the information might reveal the nature of the treatment such as where the name of the treating NHS body included the words "mental health", as, for example, in the case of "Brent, Kensington, Chelsea and Westminster Mental Health NHS Trust". None of the Claimants in the present case appear to have been treated in such an establishment and so this issue need not be determined in the context of the present case. If Mr. Wolfe is correct, it would mean that NHS bodies with the words "Mental Health" in their title could not use debt collection agencies to recover their costs from patients. In addition, the fact that non-resident patients will have been warned about this before receiving treatment would mean that they could have refused the treatment at that place and gone elsewhere (perhaps to another NHS body which did not have the words "Mental Health" in its title), especially as by its nature, the treatment did not constitute "accident and emergency services" (which have the extended meaning which I have set out in paragraph 20 (iii) above) as otherwise the immigration sanctions would not apply. Of course, if after being warned of the information that would be transmitted, the patient was still prepared to undergo treatment, it is not clear what his or her grounds of complaint would be bearing in mind that the immigration sanction regime does not cover accident and emergency services, which have a wide meaning as I have explained in paragraph 20 (iii) above.
- A third factor of importance in showing why the balancing operation shows that the transmission is lawful is that the balancing exercise has to take account of the fact that the transmission of the patient's details pursues "a legitimate aim", which is first to ensure that payment of debts to the NHS are made by non-residents as the immigration sanction is a deterrent against those who might otherwise not pay for their medical treatment; second the purpose of the immigration sanctions is to "allow better recovery of NHS debts", as was expressly stated in paragraph 1 of Appendix 7 to the Guidance and third, by ensuring that those non-residents who default in making payments are not entitled to remain in the United Kingdom. This aim has to be considered in the light of the evidence from Mr. Keenan about the difficulty of recovering the cost of medical treatment from non-residents and which I have summarised in paragraphs 18, 19 and 21 to 24 above. In addition the transmission of this evidence satisfied the statutory requirements for the NHS bodies who "must make and recover charges where it provides an overseas visitor" with medical services of the kind with which this application is concerned as specified in regulation 3 (1) of the Charging Regulations. Indeed, as I have explained, the specified disclosure is only of limited nature and therefore goes no further than necessary to achieve the legitimate aim of the regime which is to ensure that the NHS bodies can recover the sums due to it.
- A final factor of importance in the balancing exercise is the limited number of people who would have seen the transmitted specified limited information, which was achieved by secure transmission to a limited group of civil servants in the departments of both Defendants. There is no suggestion that the recipients of the transmitted information in these departments would seek to disseminate this information more widely or indeed at all. In other words, the limited nature of the disclosure in the present case was at the other end of the spectrum from the extensive disclosure which was the background to the Campbell case and which concerned the intended publication of the critical information in a newspaper with a large circulation.
- In those circumstances, the balancing exercise leads to the conclusion that the transmission of the specified limited information specified in the Guidance to the Charging Regulations pursues a legitimate aim and is proportionate to any low level of harm caused by the limited disclosure involved in the transmission process if confidential. In reaching that conclusion, I have considered with special care the situation described in paragraph 57 in which the name of the NHS body shows the nature of the treatment but even in those cases, the balancing exercise leads to the conclusion that the communication of the specified limited information is permissible. So the transmission of the patient's evidence pursuant to the Guidance is not wrongful.
Does the transmission of the non-resident's specified medical information infringe his or her rights to keep this material confidential so that "a specific statutory gateway" is required for this transmission to have been permissible?
- I have concluded that the transmission of the specified limited information specified in the Guidance is not a misuse of the non-resident patient's confidential or private information, but in case I am wrong, I will consider the further submission of the Claimants, which is that there is, and there has been, a need for there to have a specific statutory gateway for this transmission to have been permissible. Mr. Wolfe supports his submission that there is a need for such a gateway with the statement in the "NHS Code on Confidentiality", which was published in 2003 and which states (with emphasis added) that: -
"37 The approach often adopted by Government to address situations where a disclosure of information is prevented by lack of function (the ultra vires rule), is to create, through legislation, new statutory gateways that provide public sector bodies with the appropriate information disclosure functions. However, unless such legislation expressly requires that confidential patient information be disclosed, or provides for common law confidentiality obligations to be set aside, then these obligations must be satisfied prior to information disclosures taking place, e.g., by obtaining patient consent".
- It is noteworthy that this passage does not specify that there is a requirement that there must be statutory gateway, but it merely states that "the approach often adopted by Government "is to create "a new statutory gateway". It is not suggested, let alone established, that there is a legal requirement for such a statutory gateway, although in another part of that document at page 47 in Annex C model B2 paragraph 14, there is a statement that there is such a requirement. It is there stated that in respect of communications to government departments (excluding the Department of Health which requires information for medical purposes): -
"There needs to be a statutory gateway to permit desired information disclosure and government departments should ensure that tests of appropriateness and necessity are satisfied".
- Here again, these are the views of the Department but they are not underpinned by any statutory provisions or judicial comments. So these views do not show that there is a legal requirement for a statutory gateway and no good reason has been put forward to show any reason or basis for such a requirement.
- Mr. Wolfe points out that s.251 NHSA 2006 (which is dealt with in greater detail in paragraphs 73 to 76 below) provides for data sharing of certain forms of patient information for research purposes and preventative medicine and that these do not permit the transmission in the present case. The mere fact that there is a statutory regime for transmission of this information for those specific purposes does not mean or indicate that without such a regime the transmission of such information is not permitted without another statutory gateway. For the same reasons, I cannot derive any assistance from the provisions for sharing medical information set out in Part 9 of the Health and Social Care Act 2012 and in the Children Act 2004 Information Database (England) Regulations 2007 (SI 2007/2182).
- There are also provisions in the NHS Care Record Guarantee, which is a statement explaining the circumstances in which NHS bodies would be entitled to share health information particularly with other government agencies. It states that there will be no such sharing, save where the NHS is required to do it by law and where the NHS has special permission because the public good is thought to be of greater importance than the patient's confidentiality. I do not think that this statement is relevant to the transmission of the limited material which is transmitted under the immigration sanction regime for three reasons. First, the NHS Care Record Guarantee relates to detailed health records setting out the illnesses and treatment given which is radically different from the specified limited information communicated under the immigration sanction scheme, which in my view falls outside the terms of the NHS Care Record Guarantee. Second, there is no material which shows what is stated in this document represents the law. Third, as I will explain in paragraphs 79ff, the NHS bodies have powers to transmit information to the Secretary of State and they were required to transmit it as I will also explain in paragraphs 85 to 87 below.
- It is noteworthy that in any event, this information can be transmitted pursuant to the Data Protection Act 1998 as it is permitted as necessary "for the exercise of any functions conferred on any person by or under any enactment" (s1(1), s4(2) and Schedule 2 para 4(b)). As I will explain in paragraphs 79ff, the transmissions were necessary for the exercise of functions conferred on NHS bodies. Further the transmission by the Secretary of State was necessary for the exercise of functions conferred on him as I explain in paragraphs 107ff. So I cannot accept that a specific statutory gateway was required for the communication of this information to the Secretary of State and to the Home Office.
- For all those reasons, I reject the contention that the NHS bodies and then the Secretary of State are prevented on grounds of confidentiality from passing on the limited specified information relating to a non-resident patient, who has not paid fees of £1000 or more for medical services covered by the immigration sanction regime.
- In reaching that conclusion, I have not overlooked the contention of Mr. Wolfe that although Parliament can legislate away common law rights, if it does so, it must be clear what it is doing and that it must use unambiguous words. In support, he relies on Lord Hoffman's observations in R v Secretary of State ex parte Simms  2 AC 115 at 131 that: -
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document".
- In this case, for the reasons, which I have sought to explain, fundamental common law rights are not being overridden because the NHS bodies and the Secretary of State by transmitting the specified information are not infringing the non-resident patient's right to confidentiality in the material which is being transmitted.
VI. Sub-Issue 2: The General Powers Issue
- The Defendants rely on general statutory powers to authorise the transmission of the specified information to the Secretary of State and then on to the Home Office. As for transmissions to the Secretary of State, in the case of transmissions by NHS foundation trusts, the Defendants' case is that the relevant provisions are set out in s. 47 NHSA 2006 and in the case of NHS Trusts, it is said that they are set out in Schedule 4 to the NHSA 2006. In the case of the Secretary of State's transmissions to the Home Office, the relevant statutory provisions are said to be set out in s. 2 NHSA 2006 and also his common law powers. In all cases, these provisions relied on by the Defendants are of a general nature as they do not relate specifically to the transmissions of the specified medical information with which this judgment is concerned. This is significant because it is the general nature of these statutory provisions which forms the basis of the Claimants' challenge on these issues.
- Mr Wolfe also contends that general powers cannot defeat statutory powers and he relies on the decision in R v Liverpool City Council ex parte Baby Products Association  LGR 171 in which Lord Bingham of Cornhill CJ, sitting alone in the Administrative Court, explained at 178E that: -
"a power conferred in very general terms plainly cannot be relied on to defeat the intention of clear and particular statutory provisions".
- I do not consider that in this case there are provisions which meet the requirement of being "the clear and particular statutory provisions" specified by Lord Bingham. It is true that there are provisions relating to charging and recovery in s.175 NHSA 2006 and to the control of patient information in s.251 NHSA 2006, but I have concluded for reasons which I will now explain that neither of those provisions could constitute the "clear and particular statutory provisions" of the kind referred to by Lord Bingham.
- Mr. Wolfe submits that it is impermissible to rely on the general terms relied on by the Defendants to authorise the transmission as a more specific code already exists in the form of s.251 NHSA 2006, which is a provision, which according to its heading is concerned with "control of patient information". S.251(1) gives the Secretary of State powers to make:-
"by regulations… such provisions for and in connection with requiring or regulating the processing of prescribed patient information for medical purposes as he considers necessary or expedient – (a) in the interests of improving patient care, or (b) in the public interest"
- This submission fails to take account of the fact that the transmission of medical information for the purpose of the immigration sanctions, which is the matter with which this application is concerned, does not fall within the definition of "patient information" which is defined in s.251(10) as being:-
"(a) information (however recorded) which relates to the physical or mental health condition of an individual, to the diagnosis of his condition or to his care or treatment, and
(b) information (however recorded) which is to any extent derived, directly or indirectly, from such information, whether or not the identity of the individual in question is ascertainable from the information".
- In fact, the information which is transmitted under the immigration sanction regime does not cover or relate in any way to the "physical or mental health condition" or to the diagnosis of the patient. So it falls outside the scope of s.251 NHSA 2006.
- A further reason why s.251 NHSA 2006 does not apply is that the transmission of the material to the Secretary of State in connection with the imposition of the immigration sanctions is not being processed for "medical purposes", which is defined in s.251(12) NHSA 2006 as meaning :-
"…for the purposes of any of-
preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of health and social care services; and
informing individuals about their physical or mental health or condition, the diagnosis of their condition or their care and treatment".
- This is far removed from this case where the purpose of transmitting the information was to facilitate the recovery of charges and to punish those who have not paid. I do not understand the reference to s.175 NHSA 2006, because the Charging Regulations are made pursuant to them and the Guidance, as its name suggests, provides guidance to NHS bodies to assist them in carrying out their obligations under the Charging Regulations.
- In my view, there is in Lord Bingham's words no "clear and particular statutory provision" relevant to the transmission of the information specified in the Guidance in this case. So I cannot accept Mr. Wolfe's submissions, which would mean the general provisions set out in paragraph 70 above could not be relied on.
VII. Sub-Issue 3: The Insufficient Connection Issue
The vires of NHS trusts to transfer data to the Secretary of State
- The Defendants contend that there are statutory powers which confer on the NHS bodies the vires to transfer data to the Secretary of State. The Claimant's case is that the transmission of data is insufficiently connected with these statutory powers, and that in addition in any event, these statutory provisions cannot be relied upon because the statutory pre-conditions for their application have not been satisfied.
- The general powers of foundation trusts, on which the Defendants rely, are set out in s.47 NHSA 2006, which is set out in full in the Appendix, but the important provision in it provides (with emphasis added) that:-
(1) An NHS foundation trust may do anything which appears to it to be necessary or expedient for the purpose of or in connection with its functions…"..
(4) "The purposes of the NHS foundation trust" means the general or any specific purposes of the trust (including the purposes of any specific hospital at or from which services are provided by the trust)."
- Paragraph 15 of Schedule 4 to the NHSA 2006 confers an identical power on NHS trusts and the relevant part of it states with emphasis added that:-
(1) An NHS trust may do anything which appears to it to be necessary or expedient for the purposes of or in connection with its functions.
(3) The reference in sub-paragraph (2)(c) to specific purposes of the NHS trust includes a reference to the purposes of a specific hospital or other establishment or facility at or from which services are provided by the NHS trust."
- Therefore both foundation and NHS trusts have general powers expressed in broad terms to do anything that (with emphasis added) appears "to it to be necessary or expedient for the purposes of or in connection with [their] functions". So the issue to be resolved is whether transmitting the specified limited information relating to NHS debts to the Secretary of State so that it can pass it on to the Home Office for the purpose of determining whether immigration sanctions can be imposed falls within that power conferred on those NHS bodies as is contended by the Defendants to be the true position.
- Mr. Wolfe contends that the Defendants cannot rely on these provisions first, because these provisions do not confer a power to permit the transmission of patient information for a number of different reasons; and second, because there is no evidence to show that such transmission, in the words of the statutory provisions (with emphasis added) "appears to [the relevant NHS bodies] to be necessary or expedient for their purposes of or in connection with their functions". I will deal with each of these two contentions separately.
Is transmitting data relating to NHS debts to the Department of Health "necessary or expedient for the purposes of or in connection with [the NHS bodies'] functions"?
- To resolve this, it is necessary first to focus on the obligations imposed on NHS bodies under reg. 3(1) of the Charging Regulations which are, as I have explained, that these bodies "must make and recover charges where it provides an overseas visitor" with medical services of the kind with which this application is concerned. This was clearly one of the functions of these NHS bodies. The issue to be determined can now therefore be refined to being whether the transmission of the specified patient information to the Secretary of State is "necessary or expedient for the purposes of or in connection with its function [of making and recovering charges from non-resident patients]".
Are these provisions in the Guidance relating to the transmission of information by NHS bodies mandatory or discretionary and if so, with what consequences?
- It is appropriate to determine whether the NHS bodies had duties to transmit the relevant information. There are provisions in the Guidance, which apparently require NHS bodies to communicate the specified information relating to patients in that:-
(a) Paragraph 23 of Appendix 7 deals with "roles and responsibilities" and explains that "The following sets out the separate responsibilities of bodies involved in the information collation & sharing of and operational decision making related to the immigration rules". It states that NHS bodies have, among other matters, the obligations "-to identify cases where patient debts trigger the criteria for potential immigration sanctions"; and "to pass relevant information relating to these cases to the DH Overseas Visitor team";
(b) Paragraph 10 of Appendix 7 provides (with underlining as in the original) that:-
"NHS staff should not exercise judgment or discretion regarding other circumstances of individual cases (for example domestic or compassionate circumstances, age, connections with the UK). For these and other circumstances, the immigration rules provide for discretion in applying the sanctions in exceptional circumstances but this is a matter solely for Home office staff at the time and point of their engagement. The NHS should therefore continue to refer information relating to such cases";
(c) Paragraph 14 of Appendix 7 to the Guidance states that:-
"NHS bodies (mainly hospital trusts) with outstanding debts owed in respect of NHS treatment in line with the listed referral criteria should collate the relevant information and pass it securely…to the Overseas Visitor team at the Department of Health";
(d) Paragraph 15 of Appendix 7 to the Guidance provides that "this information should be updated and resent at the end of every month"; and that
(e) It is explained in that paragraph with the underlining as in the original that:
"It is particularly important that any change in the status of a debt be notified so that appropriate immigration decisions can be made";
- There is a dispute as to whether these provisions in the Guidance are mandatory or merely discretionary. The stance of the parties on this issue has not always been consistent during the course of these proceedings. The Defendants contend that the NHS Bodies have the vires and in the words of their skeleton argument "a discretion on the part of NHS is not necessary and furthermore that the exclusion of discretion is justified". The Claimants disagree and contend that the NHS bodies have no power. I must stress that I am not considering at this stage whether if the Guidance contained mandatory provisions, such provisions were lawful as that is the matter to be considered in determining the Fetter Issue.
- It is noteworthy first, that any failure to adhere to the Guidance does not carry a sanction, and second, that paragraph 2 of Schedule 7 merely states that the NHS "is encouraged to support administration of these rules". There might be some provisions in the Guidance which are discretionary, but that does not mean that all the provisions in it are discretionary. I have concluded that the provisions relating to the provision of information by NHS Bodies, which I have quoted are, however, in a mandatory form and this is shown by, for example, the provisions cited in paragraph 85 (a) and (b) above and which set out specific duties expressed in mandatory language. They constitute requirements and the wording is very different from guidance which often states that "you should normally do" and stating what "you might do". As I have already explained in paragraph 85, NHS bodies have clear instructions as to what is required of them, and these matters consist of mandatory orders and I consider that the Guidance excludes discretion on what is described as "the role and responsibility ... [of NHS bodies] to pass relevant information relating to these cases to the DH Overseas visitor team". A reader of those provisions would, I believe, have reached that conclusion.
- There is further or alternative reason why these provisions are mandatory and that is because there are statutory provisions which require the NHS bodies provide such information as he might require. The provisions in the Guidance set out in paragraph 85 above (and in particular paragraph 85(a) show the information which in the case of NHS trusts is "information … in such form as he may require". Similarly in relation to foundation trusts, what is set out in those provisions in the Guidance amounts to information which the Secretary of State "considers it necessary to have for the purpose of [his functions] in relation to the Health Service". There can be no doubt that the mandatory provisions set out in paragraph 85 satisfy those requirements as they form an integral and most fundamental part of the immigration sanction regime as I will explain in paragraph 89 below. If the provisions relating to the transmission of the specified information by NHS bodies are mandatory as I consider them to be, then it is at least "expedient", if not "necessary", for those provisions to be complied with as they comprise clear instructions to pass on this information to the Department of Health.
- If that is incorrect and the provisions are discretionary, then it must still be at least "expedient" for the NHS bodies to comply with them in the light of the obligations imposed on the NHS bodies to make and recover charges as set out in paragraph 3 of the Charging Regulations. The immigration sanction was introduced "in order to allow better recovery of NHS debts" (Paragraph 1 of Appendix 7 of the Guidance). In addition, in the words of the Guidance, "the NHS is encouraged to support administration of these rules and thereby improve the recovery of their debts by providing relevant information to the Home Office" (Paragraph 2 of Appendix 7 of the Guidance).
- So the transmission by the NHS bodies of the specified information to the Secretary of State for onward transmission to the Home Office constitutes an integral and an essential part of the regime concerned with the possible imposition of immigration sanctions on those seeking to leave or to enter or to remain in the United Kingdom who have unpaid NHS debts of at least £1000. This is meant to be, and indeed was, a deterrent against those who did not want to pay those debts and it constituted an incentive to make sure that these debts are paid. In addition, it is made clear in paragraphs 10 and 23 of Appendix 7 of the Guidance that decisions on the application of an immigration sanction were the sole responsibility of the Home Office, which is after all the Department charged with dealing with immigration matters and which has unrivalled experience of it. This means the relevant information had to be transmitted to them by those who imposed the charges who were the NHS bodies as otherwise decisions could not be made on whether to impose the immigration sanctions. This showed that it was at least "expedient" and probably "necessary" for the information to be transmitted by the NHS bodies in connection with their functions.
Can it be concluded that it "appear[ed] to [the relevant NHS bodies] to be necessary or expedient for their purposes of or in connection with their functions" to transmit the specified information to the Secretary of State?
- Mr. Wolfe submits correctly that there is no evidence from any NHS body, that the transmitting of the specified information in the words of the statutory obligations (with emphasis added) "appear[ed] to [the NHS body] to be necessary or expedient for the purpose of or in connection with its functions". So he submits that the Defendants cannot rely on these provisions as evidence from those entities, as contrasted with evidence from the Department, was necessary but has not been adduced. In the absence of any such evidence, I have to ascertain if there is any basis on which any of the NHS bodies could have considered that it was not necessary or expedient for its purposes of or in connection with its functions" to transmit the specified information to the Secretary of State. If there is no such basis, then in those circumstances, I should and must conclude that the NHS bodies would have considered it to be necessary or expedient because not to do so would not be a realistic or sensible approach. If, for example, there had been what everybody agreed was an unqualified specific statutory obligation for the NHS bodies to transmit the material and no basis for those bodies not to transmit the material but no evidence from the NHS bodies on whether it appeared necessary or expedient for them to transmit the information, there would be no point in granting the application for judicial review on the basis of the absence of such evidence as judicial review is after all a discretionary remedy.
- As I have explained, I have concluded that the relevant directions to transmit the material to the Secretary of State and to the Home Office were mandatory. So on any view, this transmission of material must have been "necessary or expedient for the purpose of or in connection with [the NHS bodies'] functions". There could be no basis for taking a contrary view.
- Even if, contrary to my conclusion, the NHS bodies had a discretion and not a duty as to whether to comply with the provisions requiring the transmission of material to the Secretary of State, I still consider that the inevitable answer is that the transmission must have been "necessary or expedient for the purpose of or in connection with [the NHS bodies'] functions". I reach that conclusion bearing in mind first, the problems with recovering charges for medical services from non-residents which Mr. Keenan has described and which I have summarised in paragraphs 18, 19 and 21 to 23 above; second, the obligations in reg. 3(1) of the Charging Regulations that the NHS bodies "must make and recover charges" incurred by non-residents; and third, as I explained in paragraph 24, the fact that if the NHS body does not recover the charge from the non-resident entity, it bears the financial loss itself. The immigration sanction regime clearly constitutes a further and useful way of ensuring that payment was made or patients were deterred from not paying. It is clear that this regime was dependent on NHS bodies, which were after all the entities that charged and knew about the debts, transmitting the specified information to the Secretary of State and then to the Home Office.
- In my view, in those circumstances and if the provisions in the Guidance were, contrary to my view discretionary, it must have "appeared" to the NHS bodies that it was, at least, "expedient", if not "necessary" for the NHS bodies to transmit this information in connection with their statutory functions of recovering charges from overseas visitors to transmit the requisite information to the Department of Health. The only basis on which the information could be or would be transmitted by the NHS bodies to the Secretary of State was to seek to recover the sums due to it as a result of the provisions of paragraph 3 of the Charging Regulations. There is no basis for taking a contrary view or for concluding (even if the provisions in the Guidance were, contrary to my view discretionary) that there was any basis on which it could have appeared to the NHS bodies not "to be necessary or expedient for their purposes of or in connection with their functions" to transmit the specified information to the Secretary of State. Although there is no onus on this issue on the Claimants, nothing has been suggested to undermine this point.
- Another reason for reaching that conclusion is that the courts have a discretion as to whether to grant a remedy and Lord Woolf MR has explained that "when it comes to exercising this discretion I cannot suggest a better test for a court to apply when deciding whether it should give [a remedy] than that it should be 'necessary or desirable to do so in the interests of justice'". (R v Inner London South District Coroner, ex parte Douglas-Williams  1 All ER 344, 347). Applying that test, I do not think that it could be in the interests of justice to grant the Claimants a remedy merely because there was no evidence from the NHS bodies that it "appear [ed] to them to be necessary or expedient for their purposes of or in connection with their functions" to transmit the specified information to the Secretary of State when there was no possible basis for the NHS bodies not to have reached that conclusion. So I conclude that transmitting data relating to NHS debts to the Secretary of State would have satisfied the statutory requirement as something which "appears to [the relevant NHS bodies] necessary or at least expedient for the purposes of or in connection with [the NHS bodies'] functions" as there is no basis for taking a contrary view. I turn now to consider the other objections of the Claimants.
Are the powers of the NHS bodies to transmit the specified material sufficiently closely connected to their functions?
- Mr. Wolfe submits that when a statutory body relies on powers that connect or are incidental to its function, it is necessary to examine this relevant function with great care, especially as such a power cannot be regarded as "incidental" merely because it was convenient, desirable or profitable to have such a power. He proceeds to contend that the application of this test means that the NHS bodies had no power to pass on the specified information relating to the overseas patient's indebtedness as the transmission of the relevant evidence was not incidental to any of their functions.
- The need for a court to examine the extent and nature of a function conferred on a statutory body with great care was explained in Hazell v Hammersmith and Fulham LBC  2 AC 1, which was a case in which the House of Lords had to consider whether the local authorities could raise money by various "swap" transactions on the London stock market, and to do so, the relevant function of the local authorities had to be identified, considered and construed (page 31D). So a power could not be incidental merely because it was convenient, desirable or profitable.
- In that case, the relevant function of the authority was borrowing, but the majority of the Appellate Committee held first, that debt management was not a local authority function (page 34 D), and second, that swap transactions could not be said to be incidental to the borrowing function with the consequence that the "swap transactions" could not be justified as being a local authority function.
- Mr Wolfe also relied on Credit Suisse v Allerdale BC  QB 306, which was a case in which the issue was whether the local authority had the statutory power to form a company to build a swimming pool with time–share accommodation and then to enter into a guarantee in respect of the company's indebtedness. The Court of Appeal unanimously held on the facts that it did not have the express or implied powers to do so.
- Neill LJ explained that: -
a. "…in considering the implied powers of a local authority under section 111 of the Act of 1972 it is first necessary to identify the relevant statutory functions. The word "functions" embraces all the duties and powers of a local authority, that is, the sum total of all the activities Parliament has entrusted to it" (page 331 H); and that
b. "it is also necessary, however, in a particular case to examine the context in which the implied powers are to be exercised". (p332 B).
- These principles are clearly applicable to the present case and Ms Demetriou contends that the powers of the NHS bodies extend to transmitting the relevant patient information as in the words of the relevant statutory provisions (namely s47 NHSA 2006 for foundation trusts and paragraph 14 of Schedule 4 NHSA 2006 for NHS Trusts), such transmissions are "necessary or expedient … with its functions". The threshold to show this is not high, because it suffices if the transmission is "…expedient for the purposes of or in connection with [the NHS Trust's] functions".
- One of the functions of the NHS bodies was, as I have explained, in the words of paragraph 3 of the Charging Regulations (with my emphasis added) that it "must make and recover charges from [the persons liable for making payments] where it provides an overseas visitor with relevant services". The mandatory nature of that requirement and function is very significant and it shows why it was "expedient", if not "necessary", to take other steps to enforce payment when the medical charges had been outstanding for three months or more and also to have this regime which would deter non-residents from incurring medical bills which they could not pay.
- Mr Wolfe also contends that the transmission of material was not "incidental to the functions of the NHS trusts", but that in fact the transmission of the specified information to the Secretary of State for onward transmission to the Home Office is further removed from those functions as it is "incidental to the incidental functions of the NHS trusts". To show that is not permissible for a public body to do something which is "incidental to its incidental functions", Mr. Wolfe relies on the decision and approach of the House of Lords in R v Richmond LBC ex parte McCarthy & Stone (Developments) Ltd  2 AC 48 in which the applicant developers challenged the legality of a decision by the respondent local planning authority to levy a charge on developers for enquiries relating to speculative development or redevelopment of proposals. On appeal, it was held that no charge could be made for pre-application advice in the absence of statutory authority either expressly or by necessary implication because the giving of pre-application advice was not a function of the local planning authority within the appropriate statutory provisions.
- It was also decided on the facts of that case that to charge for such advice did not facilitate, nor was it conducive to or incidental to the authority's functions for considering and determining planning applications. It was explained by Lord Lowry (page 70 B-C) with whom the other members of the Appellate Committee agreed that:-
"It is, accordingly clear that the consideration and determining of planning applications is a function of the council, but the giving of pre-application advice, although it facilitates and is conducive and incidental to, the function of determining planning applications, is not itself a function of the council
Thus, it is one thing to say that the giving of pre-application advice facilitates or is conducive or incidental to the council's planning functions, but it is quite another thing to say that for the council to charge for that advice also facilitates or is conducive or incidental to those functions" (emphasis as in original).
- Mr. Wolfe complains that the Defendants do not identify the relevant function on which the NHS bodies are relying to justify the transmission of information. I am unable to agree because the transmission of data was clearly "expedient" (if not "necessary") in connection with the NHS bodies' functions of imposing and recovering charges under Regulation 3 of the Charging Regulations. After all, the data is transmitted so as to allow the immigration sanctions to be applied effectively, while the purpose of the immigration sanctions is to "allow better recovery of NHS debts", as was expressly stated in paragraph 1 of Appendix 7 to the Guidance. This in turn increased the funds available to the NHS and it is made clear in Mr. Keenan's witness statement and also in the Home Office Consultation paper entitled "Consultation: Refusing entry or stay to NHS debtors" that this was the purpose of imposing the immigration sanctions regime.
- So this case is far removed from the McCarthy and Stone case because the clear function of the transmission of the limited specified material was the Regulation 3 function of ensuring the recovery of charges due to the NHS bodies from non-residents and the subsequent increase of funds available to Trusts and the Secretary of State. Indeed it is not easy to see what other functions or purpose the transmission of the information would have achieved or would have been intended to achieve. I therefore conclude that the powers of the NHS bodies to transmit the limited specified material were sufficiently closely connected to their functions and I cannot accept any of the Claimants' objections. Accordingly, the NHS bodies had the vires to transmit the limited specified material.
The vires of the Secretary of State to transfer data to the Home Office
- The case for the Defendants is that the Secretary of State, being a Minister of the Crown heading a central Government department, can rely first on those powers conferred by statute, and second on the relevant powers under the common law so as to justify the transmission of the specified information to the Home Office. Mr. Wolfe contends that the Secretary of State did not have the power to transmit this information and so it becomes necessary to consider each of these two powers in turn.
The Statutory Powers
- Starting with the statutory powers, s.2 NHSA 2006 provides (with emphasis added) that:-
"The Secretary of State...may do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any function conferred on that person by this Act."
- It is noteworthy that the power conferred on the Secretary of State under s. 2 extends far more widely than merely applying to things that are necessary for him to discharge his functions, because he is entitled also to do things that are "calculated to facilitate", "incidental to", or even merely "conducive to", such functions.
- In respect of the transmission, it is said by Ms Demetriou that there are two functions to which the transmission "is conducive to or in incidental", or "calculated to facilitate". First, it is said that the Secretary of State's function under s.175 NHSA 2006 which permits the Secretary of State to make regulations to charge overseas visitors is a function that has been exercised by the enacting of the Charging Regulations. The case for the Defendants is that the transmission of this data is incidental to or is conducive to that function, because it enables those regulations to be applied more effectively by facilitating the recovery of charges.
- Second, it is said that the transmission of data is conducive or incidental to the Secretary of State's function under s1 NHSA, which, as I have explained in paragraph 13 above, is the general function of promoting an effective healthcare system. The transmission of patient information leads to the prospect of a more effective recovery of charges and therefore to the availability of more funds to fulfil that duty.
The Common Law Powers
- The second ground relied on by the Defendants is that the Crown, and therefore the Secretary of State, possesses general administrative powers to carry on the ordinary business of government and this is not dependant on the Royal Prerogative or on statutory prerogative. This was explained by the Court of Appeal in R v Secretary of State for Health ex p C  1 FLR 627 in which it was held that the Secretary of State for Health could rely on common law powers to maintain and share the "Consultancy Service Index" which was a list of people about which there were doubts about their suitability to work with children.
- Hale LJ explained the basis of the Secretary of State's common law powers in this way at pages 631 to 632 when she observed that:-
"The Crown is not a creature of statute and in one respect at least is clearly different from a local authority. The Crown has prerogative powers. But what does this mean? Professor Sir William Wade, in Administrative Law (7th edition 1994 by Wade and Forsyth), at pp 248 - 249, draws a clear distinction between prerogative and other powers: '"Prerogative" power is, properly speaking, legal power which appertains to the Crown but not to its subjects. Blackstone explained the correct use of the term. . . . Although the courts may use the term "prerogative" in this sense, they have fallen into the habit of describing as "prerogative" every power of the Crown which is not statutory, without distinguishing between powers which are unique to the Crown, such as the prerogative power of pardon, from powers which the Crown shares equally with its subjects because of its legal personality, such as the power to make contracts, employ servants and convey land.' There is no suggestion of a specific prerogative power in this case but Halsbury's Laws, volume 8(2); at note 6 to para 101 confirm that 'At common law the Crown, as a corporation possessing legal personality has the capacities of a natural person and thus the same liberties as the individual'. It was on this ground that Richards J declined to hold that the Index was unlawful"
- This decision was considered by Carnwath LJ in Shrewsbury & Altrincham BC v Secretary of State for Communities and Local Government  3 All LR 548, who explained at page 563 in relation to the Crown's common law powers that:-
"48… as an organ of government, it can only exercise those powers for the public benefit and for identifiably "governmental" purposes within limits set by the law"
- These reservations were not accepted by Richards LJ, who in that case said at page 570 that:-
"72. I do not, however, share Carnwath LJ's reservations about the extent of the common law powers of the Crown. As the first instance judge whose decision was upheld by the Court of Appeal in R v Secretary of State for Health, ex p. C  1 FLR 627 I took a broad view of those powers, and nothing in the materials deployed before us in the present case has caused me to change my mind. The Court of Appeal's judgment in that case is not only determinative of the issue at this level (see paras 44 and 49 of Carnwath LJ's judgment) but was in my view correct.
73. The complex process of government includes a vast amount of work in relation to the formulation of policy, drafting new legislation and preparing for its implementation. Carnwath LJ states that it is not necessary to invoke a "third source" of power for such work, which is simply "a necessary and incidental part of the ordinary business of government" (para 49). To my mind, however, it is still necessary to explain the basis on which that ordinary business of government is conducted, and the simple and satisfactory explanation is that it depends heavily on the "third source" of powers, i.e. powers that have not been conferred by statute and are not prerogative powers in the narrow sense but are the normal powers (or capacities and freedoms) of a corporation with legal personality. The context is a special one, but the powers are the same.
I accept, of course, that such powers cannot override the rights of others and, when exercised by government, are subject to judicial review on ordinary public law grounds. But I think it unnecessary and unwise to introduce qualifications along the lines of those suggested by Carnwath LJ at para 48, to the effect that they can only be exercised "for the public benefit" or for "identifiably 'governmental' purposes". It seems to me that any limiting principle would have to be so wide as to be of no practical utility or would risk imposing an artificial and inappropriate restriction upon the work of government"
- In support of his contention that the Secretary of State had no power to transmit material to the Home Office, Mr. Wolfe relies on many of the same points which I was unable to accept when he was submitting that the NHS bodies had no power to transmit the patient information. I do not intend any disrespect by not setting out the same reasoning to refute those points in the Claimants' case in relation to the transmission from the Secretary of State to the Home Office.
- I consider that the regime for the transmission of the specified information is "calculated to facilitate" or is "incidental to" or is "conducive to" the Secretary of State's function under s. 1 NHSA 2006 as it leads to greater recovery of funds and the availability of more funds to enable the Secretary of State to comply with his duties under that provision, which, as I have explained in paragraph 13, are to continue the promotion in England of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England.
- In reaching that conclusion, I have considered, but rejected, Mr. Wolfe's submission that such a conclusion is inconsistent with the decisions in McCarthy and Stone and in Hazell. In those fact-sensitive cases, the local authorities did not have duties similar to the NHSA 2006 s.1 duties imposed on the Secretary of State. So I am satisfied that the Secretary of State had the statutory power to transmit the specified information.
- Turning to the common law powers relied on by the Defendants, Mr. Wolfe disputes that they give the Secretary of State power to transmit material to the Home Office. In my view, even if Carnwath LJ's doubts, which I set out in paragraph 115 above, are accepted, the Secretary of State still had sufficient powers to transmit the information as it was clearly for "identifiable governmental purposes within limits set by the law". It is a useful and fruitful exercise, as the Defendants submit, to contrast the data-sharing in this case with that in ex p C, as in that case, the data was very sensitive revealing not only criminal convictions, but also information communicated by employers when the individual left his or her employment in cases in which the welfare of children may have been put at risk. In addition, unlike in the present case, the information was disclosed to non-governmental bodies and, in particular, to prospective employers.
- So I conclude that the Secretary of State had both the statutory and common law duties to transmit this information.
- In those circumstances, I consider that there was power first for the NHS bodies to send the specified information to the Secretary of State and then for him to transmit the specified information on to the Home Office. So I reject the Claimants' objections on this Vires Issue.
VIII. The Fetter Issue
- The case for the Claimants is that even if there was a power initially for the NHS bodies and then for the Department of Health to transmit and share data in the way anticipated by the Guidance, it was only a power, but it was not a duty. In consequence, it is said that the Guidance is misleading and wrong and therefore unlawful in stating that NHS bodies had a duty to transmit the information so as to compel them to do so. Thus it is said that the discretion of the NHS bodies has been unlawfully fettered.
- Mr. Wolfe contends that although paragraph 9 of Appendix 7 to the Guidance provides that a local decision might be required by the NHS body where there is a reasonable doubt about the legitimacy of charges, and whether there is a reasonable arrangement for scheduled payments and is being maintained, the position changes radically when first, the legitimacy of the charges is established, and second, there is a default in payment. The reason why there is this radical change is that, as I have already explained, at this stage the information must be transmitted because of the provision set out in paragraph 85 (a) above and more importantly paragraph 10 of Appendix 7, which provides (with underlining as in the original) that:-
"NHS staff should not exercise judgment or discretion regarding other circumstance of individual cases (for example domestic or compassionate circumstances, age, connections with the UK). For these and other circumstances, the immigration rules provide for discretion in applying the sanctions in exceptional circumstances but this is a matter solely for Home office staff at the time and point of their engagement. The NHS should therefore continue to refer information relating to such cases".
- The Claimants' case is that these bodies were thereby obliged to consider in each case whether to pass on this information, and if so, what information should be transmitted. So it is said that the position is the same as in R (A) v Secretary of State  1 WLR 279 in which the guidance then relating to the charging regime was held unlawful because first, it "failed to make sufficiently clear" the existence of a discretion to treat immigrants even though they could not pay for their treatment and second, because it failed to point out the extent of the discretion.
- The reason why it is said that the present Guidance suffers from the same vice is because it wrongly tells NHS staff that they had an obligation as they had to pass on information, notwithstanding that there was a discretion on the part of the NHS bodies not to pass on information to the Home Office as the NHS bodies were entitled to tell the patient that they would not do so.
- Mr. Wolfe relies on the well-known statement of Lord Reid in British Oxygen v Minister of Technology  AC 610, 625 that: -
"The general rule is that anyone who has to exercise a statutory discretion must not" shut his ears to an application "(to quote
from Bankes L.J. on page 183). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that provided the authority is always willing to listen to anyone with something new to say".
- He proceeds to rely on the statement of Lord Bridge in Gillick v West Norfolk AHA  1 AC112, 192 that:-
"if a government department, in a field of administration in which it exercises responsibility exercises responsibility, promulgates in a public document, albeit non statutory in form, advice which is erroneous in law, then the court, in proceedings in appropriate form, advice which is erroneous in law, then the court … has jurisdiction to correct the error of law by an appropriate declaration".
- Mr. Wolfe says that a similar approach was also adopted by Collins J when deciding that a Circular issued by the Secretary of State for Health was unlawful as a matter of domestic law and could be the subject of judicial review (R v Secretary of State for Health ex parte Pfizer Limited  3 CMLR 875). Collins J explained at page 885 that:-
"17 …advice can be struck down if its purpose and effect is to achieve what cannot lawfully be achieved in that way because safeguards are overridden".
- In essence, the case for the Claimants on this issue is that the Guidance impermissibly and wrongly seeks to constrain NHS Bodies in the exercise of their powers and/or misleadingly suggests that they are under an obligation to transmit the limited specified material. I have already explained in paragraphs 87 and 88 why I have concluded that the instructions set out in paragraph 85 were mandatory and I will deal with this issue on that basis. The case for the Defendants is that there was no need for the NHS bodies to have discretion and that the exclusion of discretion is justified and lawful in the context of the present case.
Is the exclusion of discretion on the part of NHS bodies lawful?
- On the basis that, contrary to my conclusion, the NHS bodies should have discretion whether to transmit, the case for the Secretary of State is that the exclusion of discretion is lawful for each of two different reasons. The first reason relied on by the Defendants is that in any event, the Secretary of State had a statutory right based on that status to obtain information from NHS bodies and that this would include the specified information which was transmitted as part of the immigration sanction regime. The second reason is that in the light of the mechanics of the data-sharing and the responsibility for imposing immigration sanctions, there should not have been discretion on the part of NHS trusts because to do so would undermine an important legislative aim of the immigration sanctions regime and so it is permissible.
The statutory right of the Secretary of State for Health to obtain information from NHS bodies
- The Defendants contend that those NHS bodies were under a statutory duty to provide to the Secretary of State such information as he might require. This entails separate consideration of the regime for NHS foundation trusts and for NHS trusts as their duties arise under different statutory regimes. In the case of NHS foundation trusts, they have statutory obligations to provide information to the Secretary of State as s.48(1) of NHSA 2006 requires a NHS foundation trust:-
"To provide the Secretary of State with such information as the Secretary of State considers it necessary to have for the purposes of the functions of the Secretary of State in relation to the Health Service".
- The case for the Defendant is that the provisions of Appendix 7 of the Guidance show the specified information that the Secretary of State required to be provided with in accordance with this statutory obligation. It was clearly for the purposes of fulfilling his functions which, as I have explained, included the obligation under s1 (1) NHSA 2006 to continue the promotion in England of a comprehensive health service to secure improvement in the physical and mental health of the people in England and in the prevention, diagnosis and treatment of physical and mental illness.
- Mr. Keenan in his witness statement has explained that charging overseas visitors for health treatment is necessary to safeguard public funds and to ensure that the NHS and so the Secretary of State for Health have sufficient resources to fund their NHSA 2006 s.1 duty of providing a comprehensive free-at-the-point-of-delivery health service for those who are entitled to it. This means ensuring that overseas visitors pay for their medical treatment, but, as Mr. Keenan has explained, this has proved difficult and the immigration sanctions regime constitutes one of the ways in which this duty is complied with.
- In order to decide if immigration sanctions can and should be applied, it is necessary for the Secretary of State to provide the Home Office with the requisite information which comes from both NHS bodies.
- There are similar provisions to those relating to foundation trusts for NHS trusts because paragraph 13 of Schedule 4 to NHSA 2006 provides that:-
"An NHS trust must furnish to the Secretary of State such reports, returns and other information, including information as to it forward planning, as , and in such form as he may require"
- As I have explained in paragraph 85 (and in particular in paragraph 85(a)),the Guidance contains requests, if not demands, from the Secretary of State for the NHS bodies to collect the limited specified information and then transmit it to the Secretary of State. These provisions when read together with the provisions in paragraphs 131 and 135 have the effect of requiring the transmission of this information. This is more than a power because it is an obligation imposed by statute to comply with demands and requests from the Secretary of State and so there is no reason why there should be any discretion.
- I therefore conclude that the NHS bodies had a duty, and not a discretion to transmit the relevant information to the Secretary of State with the consequence that there can be no complaint about the absence of any discretion on the part of the NHS bodies to decide if the specified information should be transmitted to the Secretary of State.
- In case I am wrong and there was no statutory duty on the part of the NHS bodies to provide information to the Secretary of State, I must consider the Defendants' alternative case which is that because of the mechanics of the data sharing and the immigration sanctions, there should not be discretion on the part of both NHS bodies not to transmit because such a discretion would undermine the statutory purpose of the regime. I have already explained the steps by which information from NHS bodies is passed to the Secretary of State and then transmitted to the Home Office, whose officials then have to decide whether to impose the immigration sanctions.
- The critical factor is that the decision-making is vested in the Home Secretary, who has a very substantial discretion in deciding whether to impose immigration sanctions and I have set out the relevant rules, namely rules 320(22) and 321(22) in paragraph 26 and 27 above. They set out the grounds on which entry clearance or leave to enter or leave to remain "should normally be refused" and this is reinforced by the provisions of paragraph 10 of Appendix 7 which I have just set out.
- It is necessary to appreciate, as I have explained, that paragraph 23 of Appendix 7 to the Guidance sets out "the separate responsibilities involved in the information collation & sharing and operational decision making related to the immigration rules". It is very significant that the Home Office has "to make decisions on the application of an immigration sanction, including any instances of discretion in exceptional individual circumstances". I stress that it is not suggested in the Guidance or elsewhere that any other body has that responsibility or should perform it.
- To exercise this discretion in deciding whether to impose immigration sanctions, the Home Secretary needs to be in full possession of the facts as relevant to the outstanding debt as well as the facts relevant to determining the immigration status of the patient as otherwise she would not be able to exercise her discretion fairly and properly. There is no challenge to either the regime for charging overseas visitors for health treatment in the Charging Regulations or in the sanctions in the Immigration Rules. The transmission of the material from the NHS bodies is an essential part of this regime so as to enable the Home Secretary to exercise her discretion.
- The Claimants have suggested some reasons why there should be discretion on the part of the NHS bodies to decide if information should be transmitted. The main reason is that some patients might be deterred from receiving treatment in the absence of a proper commitment from the NHS trust not to transmit the information. I do not consider this to be a potent factor bearing in mind that the charging regime is a carefully balanced exercise as is shown by the facts first, that accident and emergency services (which have the extended meaning set out in paragraph 20 above) are exempted from charging, second, certain vulnerable categories of overseas visitors (including refugees, asylum seekers and children in care) are exempted from charging and third, Chapter 4 of the Guidance sets out the circumstances when NHS bodies must provide treatment free of charge because the clinicians consider it to be immediately necessary.
- There are, however, four powerful reasons which individually and cumulatively satisfy me that there should be no discretion on the part of the NHS bodies not to transmit the specified material. First, the object of the immigration sanction regime is to ensure or to assist in debt recovery, which requires the compulsory nature of the duties of NHS bodies to transmit the relevant information. Second, NHS staff do not have full knowledge of the personal circumstances of the patient, which might be relevant to a decision on whether or not to impose the immigration sanction.
- A third, and perhaps more important reason as to why the NHS staff should not have discretion is that unlike Home Office officials, they are not trained or experienced in determining the kind of issues which have to be considered before a decision can be made as to whether an immigration sanction should or should not be imposed. Those issues include identifying and appraising any countervailing factor which could lead to the conclusion that an immigration sanction should not be applied in a particular case.
- Such factors might relate to a whole variety of factors relating to the private life of the patient or to his or her children as well as factors relating to their treatment and safety of the patient in the country to which he or she might be removed. I know from my experience as an Administrative Court judge that these decisions almost invariably require specialised knowledge and experience of the kind only possessed by Home Office officials, who unlike NHS officials routinely deal with this kind of issue.
- A fourth point of significance as showing why the local NHS bodies should not have discretion is that if they have to or are entitled to decide if the relevant information should be transmitted, this would give rise to a risk of discriminatory, arbitrary and inconsistent application of the immigration sanctions as different medical teams in different NHS bodies are likely to exercise their discretion in different ways. The Home Office would apply the same policy for everybody.
- So I agree with the submission of the Defendants that if there was discretion not merely on the part of the Home Office, but also on the part of NHS bodies, of the kind advocated by the Claimants, it would not only inhibit the workings of the overall regime, but that it would also undermine its aim. In my view, if the immigration sanctions are to be effective in supporting debt recovery and in deterring deliberate abuse of NHS services, they must be applied consistently to all non-resident NHS debtors by the Home Office officials who have the requisite knowledge, training and experience. If the NHS bodies could decide whether or not to pass on data, this would undermine the aim and the purpose of the statutory regime and no good reason has been put forward to show why they should have this discretion.
- Ms Demetriou derives assistance for her submission that there should be no discretion not to transmit the specified information on the part of NHS bodies on the grounds that such a discretion would undermine the important legislative aim from the important observations of Kenneth Parker J in R (Nicholds and another) v Security Industry Authority  EWHC 1792 (Admin) when he said (with emphasis as in the original) that:-
"61…In most instances where a discretionary power is conferred it would be wrong for the decision maker to frame a rule in absolute terms because to do so would defeat the statutory purpose. However, it seems to me that there are certain exceptional statutory contexts where a policy may lawfully exclude exceptions to the rule because to allow exceptions would substantially undermine an important legislative aim which underpins the grant of discretionary power to the authority…
62. In my view, the statutory context must be examined with great care. In this case, for the reasons already given, the statutory context empowers the Authority to make the commission of certain serious criminal offences an absolute bar to obtaining a licence to work as a door supervisor. The rule is intra vires and rational. Not to have such a rule in respect of offences of such great gravity would tend to undermine a fundamental aim of the Act, and such a failure would be truly vulnerable to challenge on grounds both of ultra vires and Wednesbury irrationality"
- I am fortified in reaching the conclusion that the purpose of the immigration sanction regime would be undermined if the NHS bodies had a discretion by the fact that the purpose of the immigration sanction regime was to ensure that there would be a free flow of information between the NHS bodies to the Home Secretary via the Secretary of State with the Home Secretary or his officials taking the requisite decision with the benefit of their specialised experience and knowledge. So I reject the submission that there should be or needs to be any form of discretion on the part of NHS bodies not to transmit the specified information to the Secretary of State as this would undermine the important legislative aim set out in the Guidance, which was to ensure that the Home Secretary would receive all information from the Secretary of State who in turn would receive it from the NHS bodies so that the Home Secretary could, and would, then decide whether to impose immigration sanctions.
- I therefore conclude that there has been no wrongful fettering of the discretion of the NHS bodies. The present case is far removed from cases such as Gillick in which the non-statutory advice was wrongful.
- I conclude on the Vires Issue that the NHS bodies had powers to transmit the specified limited information to the Secretary of State, who then had the power to pass on the information to the Home Office. In summary form, my reasons for so holding are that:-
a. The specified limited information did not constitute confidential or private information because first, it only related to the identity of the non-resident patient, the extent of the indebtedness and the NHS body to which the debt is owed, and second, it did not refer to the patient's medical history, or why the patient sought medical treatment or the treatment received or anything about the patient's health (paragraphs 45-50);
b. Even if that is wrong and the specified limited information was confidential or private, it is then necessary to carry out a balancing exercise to ascertain "whether publication of the material pursues a legitimate aim and whether the benefits are proportionate to the harm that may be done by the interference with the right to privacy" (per Lord Hope of Craighead in Campbell v MGN Limited  2 AC 457,498). For the reasons set out in paragraphs 55-60, the balancing exercise leads to the conclusion that the transmission of the specified limited information pursued a legitimate aim (namely to ensure that payment of debts to the NHS bodies are made by those non-residents and those who default are not entitled to remain in the United Kingdom) and was proportionate to the any low level of harm caused by the limited disclosure involved in the transmission process;
c. Even if contrary to my conclusions, the specified limited information was confidential, there was no need for a statutory gateway (paragraphs 62-66)
d. There is no basis for contending that there should not be a general power to permit the transmission of the specified limited information as such power "would defeat the intention of clear and particular statutory provisions" as there were no particular or clear statutory provisions applicable (paragraphs 72-78);
e. The foundation trusts and the NHS trusts had statutory powers to transmit the specified limited information if it appeared "to it to be necessary or expedient for the purposes of or in connection with its functions" (paragraphs 80 and 81). The transmission clearly was necessary or expedient for the purposes of or in connection with the functions of the NHS bodies in the light of their obligations:-
(i) To "make and recover charges where it provides an overseas visitor with medical services"; and
(ii) To comply with duties in the Guidance to transmit the specified limited information to the Department of Health (paragraphs 85-88) especially as there was a statutory duty imposed by paragraph 13 of Schedule 4 of NHSA2006 on the part of NHS trusts to "furnish to the Secretary of State such reports, returns and other information … and in such form as he may require". Similarly s48(1) NHSA 2006 required foundation trusts to "provide the Secretary of State with such information as the Secretary of State considers it necessary to have for the purposes of the Secretary of State in relation to the Health Service" (paragraphs 88 and 131- 135). The arguments to the contrary are incorrect (paragraphs 91-106), as the provisions in the Guidance requiring these NHS bodies to transmit the requisite information had to be complied with in the light of these obligations; and
(f) The Secretary of State had vires to transfer data to the Home Office both under statute pursuant to section 2 NHSA2006 and also at common law (paragraphs 108 -120).
- On the Fetter Issue, I am unable to accept the Claimants' contentions first that the NHS bodies and then the Secretary of State had powers to transmit the specified limited information; second, that they did not have a duty to do so and third, that the Guidance is misleading and therefore wrongful in that it stated the NHS bodies had a duty to transmit this information. These submissions cannot be accepted as: -
(i) The Secretary of State had a statutory right to obtain information from the NHS bodies as explained in paragraph 151(e) above (paragraphs 131-137); and in any event
(ii) Even if that is wrong, the mechanics of the data sharing and immigration sanctions meant that there should not be discretion on the part of NHS bodies not to transmit the specified limited information because such discretion would undermine the statutory purpose of the immigration sanction regime (paragraphs 138-149).
- For the reasons which I have sought to set out, notwithstanding the submissions of Mr. Wolfe, the claim has to be dismissed.
National Health Services Act 2006
Secretary of State's duty to promote health service
(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of illness.
(2) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.
(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.
Secretary of State's general power
(1) The Secretary of State may—
(a) provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act, and
(b) do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.
(2) Subsection (1) does not affect—
(a) the Secretary of State's powers apart from this section…
(1) An NHS foundation trust may do anything which appears to it to be necessary or expedient for the purpose of or in connection with its functions…
Charges in respect of non-residents
(1) Regulations may provide for the making and recovery, in such manner as may be prescribed, of such charges as the Secretary of State may determine in respect of the services mentioned in subsection (2).
Control of patient information
(1) The Secretary of State may by regulations make such provision for and in connection with requiring or regulating the processing of prescribed patient information for medical purposes as he considers necessary or expedient—
(a) in the interests of improving patient care, or
(b) in the public interest.
(2) Regulations under subsection (1) may, in particular, make provision—
(a) for requiring prescribed communications of any nature which contain patient information to be disclosed by health service bodies in prescribed circumstances—
(i) to the person to whom the information relates,
(ii) (where it relates to more than one person) to the person to whom it principally relates, or
(iii) to a prescribed person on behalf of any such person as is mentioned in sub-paragraph (i) or (ii),
in such manner as may be prescribed,
(b) for requiring or authorising the disclosure or other processing of prescribed patient information to or by persons of any prescribed description subject to compliance with any prescribed conditions (including conditions requiring prescribed undertakings to be obtained from such persons as to the processing of such information),
(c) for securing that, where prescribed patient information is processed by a person in accordance with the regulations, anything done by him in so processing the information must be taken to be lawfully done despite any obligation of confidence owed by him in respect of it,
(d) for creating offences punishable on summary conviction by a fine not exceeding level 5 on the standard scale or such other level as is prescribed or for creating other procedures for enforcing any provisions of the regulations.
(3) Subsections (1) and (2) are subject to subsections (4) to (7).
(4) Regulations under subsection (1) may not make provision requiring the processing of confidential patient information for any purpose if it would be reasonably practicable to achieve that purpose otherwise than pursuant to such regulations, having regard to the cost of and the technology available for achieving that purpose.
(5) Where regulations under subsection (1) make provision requiring the processing of prescribed confidential patient information, the Secretary of State—
(a) must, at any time within the period of one month beginning on each anniversary of the making of such regulations, consider whether any such provision could be included in regulations made at that time without contravening subsection (4), and
(b) if he determines that any such provision could not be so included, must make further regulations varying or revoking the regulations made under subsection (1) to such extent as he considers necessary in order for the regulations to comply with that subsection.
(6) Regulations under subsection (1) may not make provision for requiring the processing of confidential patient information solely or principally for the purpose of determining the care and treatment to be given to particular individuals.
(7) Regulations under this section may not make provision for or in connection with the processing of prescribed patient information in a manner inconsistent with any provision made by or under the Data Protection Act 1998 (c 29).
(8) Subsection (7) does not affect the operation of provisions made under subsection (2)(c).
(9) Before making any regulations under this section the Secretary of State must, to such extent as he considers appropriate in the light of the requirements of section 252, consult such bodies appearing to him to represent the interests of those likely to be affected by the regulations as he considers appropriate.
(10) In this section "patient information" means—
(a) information (however recorded) which relates to the physical or mental health or condition of an individual, to the diagnosis of his condition or to his care or treatment, and
(b) information (however recorded) which is to any extent derived, directly or indirectly, from such information,
whether or not the identity of the individual in question is ascertainable from the information.
(11) For the purposes of this section, patient information is "confidential patient information" where—
(a) the identity of the individual in question is ascertainable—
(i) from that information, or
(ii) from that information and other information which is in the possession of, or is likely to come into the possession of, the person processing that information, and
(b) that information was obtained or generated by a person who, in the circumstances, owed an obligation of confidence to that individual.
(12) In this section "medical purposes" means the purposes of any of—
(a) preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of health and social care services, and
(b) informing individuals about their physical or mental health or condition, the diagnosis of their condition or their care and treatment.
(13) In this section—
"health service body" means any body (including a government department) or person engaged in the provision of the health service that is prescribed, or of a description prescribed, for the purposes of this definition,
"processing", in relation to information, means the use, disclosure or obtaining of the information or the doing of such other things in relation to it as may be prescribed for the purposes of this definition.
(13) An NHS trust must furnish to the Secretary of State such reports, returns and other information, including information as to its forward planning, as, and in such form as, he may require.
(14) (1) An NHS trust may do anything which appears to it to be necessary or expedient for the purposes of or in connection with its functions