North Dorset NHS Primary Care Trust & Anor v Coombs

Detention under the Mental Health Act 1983 does not, by itself, prevent a patient or those responsible for his assets from paying for or contributing to care or treatment. Neither that Act nor the National Health Service Act 2006, nor public policy, creates an absolute prohibition.

Payment cannot override the responsible clinician’s control over treatment or fund care inconsistent with clinical recommendations. Private or additional care remains subject to the statutory rules governing free NHS services and charging. Practical funding difficulties do not create a public-policy bar.

Mr Timothy Coombs was detained under section 3 of the Mental Health Act 1983. After escaping from hospital while being returned by ambulance, he sustained a serious head injury and sued the defendant NHS trusts. Liability for the injury was admitted, but a preliminary issue arose as to whether the cost of care during detention could be privately funded by Mr Coombs or his family.

His Honour Judge Platts held that neither statute nor public policy prevented such payment: [2012] EWHC 521 (QB). The trusts appealed. The central question was whether detention under the Act excluded any private contribution to care or treatment.

The Court of Appeal dismissed the appeal. Lord Justice Rix gave the judgment, with which Lord Justice Aikens and Lady Justice Black agreed.

1. The responsible clinician has ultimate control over the treatment of a detained patient. A patient or family member cannot use private funding to override clinical decisions. Certain treatments also remain subject to the statutory consent and second-opinion safeguards.
2. The statutory framework contains no express prohibition on private payment. The provision in section 35(8) of the Mental Health Act 1983, allowing an accused remanded to hospital to obtain an independent report at his own expense, was confined to that criminal-justice context and did not imply a general prohibition.
3. The prisoner analogy did not determine the issue. Detention of a prisoner is punitive, whereas detention under the Act is therapeutic. Section 51 of the Prisons Act 1952 concerned the Secretary of State’s obligation to obtain parliamentary funding for prisons and prisoners, not whether a patient or family could provide additional support.
4. The National Health Service Act 2006 did not make the NHS the exclusive provider of all accommodation and medical services for detained patients. NHS duties applied to detained patients as they did to others requiring physical or mental healthcare. The authorities, including R(F) v. Oxfordshire Mental Health NHS Trust [2001] EWHC Admin 535 and Peters v. East Midlands Strategic Health Authority [2009] EWCA Civ 145, showed that private services and care beyond the statutory NHS duty could exist.
5. Accordingly, there was no absolute statutory or public-policy bar on a detained patient, family member or asset-holder paying for care or treatment, including private or additional facilities. Such provision had to be recommended by, or consistent with, the responsible clinician and remained subject to statutory charging restrictions.

The court considered it likely that the same answer might apply to Part III detainees and to private payment unrelated to a tort claim, but those questions were not necessary to decide. The decision was confined to this Part II claimant.

• Court of Appeal (Civil Division): The appeal was dismissed on 30 April 2013.
• High Court of Justice, Queen’s Bench Division: His Honour Judge Platts decided the preliminary issue in favour of the claimant, holding that detention did not prevent private payment: [2012] EWHC 521 (QB).