Coombs v Dorset NHS Primary Care Trust & Anor

A person detained under the Mental Health Act 1983 is not prevented from paying for care or treatment from personal resources. Payment is permissible only where it does not give the patient control over placement or treatment. Those decisions remain with the detaining authority and responsible clinician under the statutory scheme. A patient’s contribution may expand the options available to the authority, but cannot override its decision. Such payment is not necessarily an unlawful charge for NHS treatment, because the authority must remain able to provide suitable care without the contribution. Article 5 of the Convention concerns the fact and lawfulness of detention, rather than the conditions of detention, and did not govern the issue.

The claimant, detained under section 3 of the Mental Health Act 1983 following an admitted negligent head injury, sought damages including the future cost of care and treatment at a suitable placement. The defendants accepted liability but argued that a detained patient could not pay for his own care or treatment as a matter of statutory construction, public policy or because payment would be inconsistent with compulsory detention.

Master Yoxall directed a trial of the preliminary issue whether a person detained under the Act was prevented from paying for personal care or treatment. The issue was framed generally and did not determine whether particular costs were reasonably incurred or recoverable from a tortfeasor.

1. Preliminary issue answered in the claimant’s favour. A person detained under a provision of the Mental Health Act 1983 is not, as a matter of public policy or otherwise, prevented from paying for his own care or treatment.
2. Detained patients are in a different position from ordinary patients because the Act gives the detaining authority powers over placement, treatment and other freedoms. That difference does not equate detained patients with prisoners. The purpose of detention under the Act is treatment, together with protection of the patient and the public, and it has no punitive element. There was no material distinction for this issue between Part II and Part III patients, or between restricted and unrestricted patients. The position of prisoners transferred to hospital under section 47 was left open.
3. The decisive question was whether self-funding was incompatible with detention under the Act. It would be incompatible if payment enabled the patient to choose or impose the treatment or placement. It was not incompatible on the basis advanced here. Placement remained a decision for the hospital managers, and treatment remained a decision for the responsible clinician. A patient could provide funds only to facilitate an option accepted by the relevant authority.
4. Payment in those circumstances was not charging for the provision of care. The detaining authority had to remain able to provide suitable care and treatment without the patient’s contribution. If the authority agreed to a patient-funded arrangement, the patient would remain detained and subject to all statutory restrictions while the detention criteria continued to be met.
5. The patient’s capacity did not alter the answer. Practical problems concerning vulnerability, advice, funding failure, contractual liability and raised expectations were real but insufficient to remove the option of payment. The authorities concerning public policy did not establish a distinct contrary policy.
6. Article 5 of the Convention was irrelevant. It addressed the fact and lawfulness of detention, whereas the proposed privately funded placement concerned the conditions of detention. The claimant did not challenge the lawfulness of his detention.