Booker, R (on the application of) v NHS Oldham & Anor

A primary care trust must determine eligibility for NHS continuing healthcare by reference to assessed clinical needs and the statutory and policy framework. It may not refuse care because a claimant has recovered damages, can obtain an indemnity from a tortfeasor or could fund care privately. The NHS Constitution requires regard to access based on clinical need rather than ability to pay. A private care package removes the need for NHS care only once it has been successfully established and implemented. Where a patient has been assessed as eligible for a specified level of care, the trust must provide that level unless the shortfall is supplied by others. Any wider transfer of the cost of tort-related care from public funds to tortfeasors requires primary legislation.

The claimant was a ventilator-dependent tetraplegic who had settled personal injury proceedings on terms providing a lump sum and periodical payments from 15 December 2011. The settlement included undertakings addressing any shortfall in NHS-funded care before that date. NHS Oldham decided to withdraw continuing healthcare from 1 October 2010, treating the claimant as having elected privately funded care because of the settlement and the available indemnity. The claimant sought judicial review, challenging the decision as unlawful and irrational, and also challenged the proposed level of care. The court considered the time limit, the statutory framework governing NHS provision, the effect of the settlement and the relevance of the tortfeasor-pays principle.

1. Time. The grounds for judicial review first arose on 7 June 2010, when the PCT indicated that withdrawal was imminent. Although the claim was issued eight days late, time was extended to 15 September 2010. The PCT’s suggestion that proceedings before 20 July would be premature, the absence of prejudice and the public interest in determining the issue on its merits justified the extension.
2. Statutory duty and eligibility. Section 3 of the National Health Service Act 2006 creates an enforceable duty to provide services necessary to meet reasonable requirements. In deciding whether care is reasonably required, the PCT had to have regard to the comprehensive service duty in section 1, the NHS Constitution for England and the National Framework policy. Eligibility and provision were to be based on assessed health needs, not access to alternative funding.
3. Settlement and private funding. The claimant had not elected to receive private care from the date of settlement. The settlement contemplated NHS care until 15 December 2011 and provided a safety net if NHS care was reduced. The PCT could not treat damages or an indemnity as equivalent to the successful establishment and implementation of a private care package. Refusal on that basis was unlawful and irrational.
4. Tortfeasor-pays principle. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 governs the assessment of damages between claimant and tortfeasor. It did not authorise the NHS to withhold otherwise eligible care. A policy choice to transfer NHS costs directly to tortfeasors required primary legislation.
5. Level of care. The PCT had assessed the claimant as requiring two carers for 24 hours a day, seven days a week. It was unlawful to provide less unless the shortfall was supplied by others. Care provided by the claimant’s mother did not satisfy that qualification where it was not the result of a free choice.
6. The formulation of relief was deferred to the hand-down hearing to allow the parties to discuss the appropriate remedies.