Mitocariu & Anor, R (On the Application Of) v Central And North West London NHS Foundation Trust

An NHS foundation trust has power under the National Health Service Act 2006 to make occasional payments to in-patients. That power is limited to payments made for, or in connection with, the trust’s statutory functions. The amount, timing and frequency of any payment must be commensurate with the patient’s therapeutic needs and assessed case by case. The power does not create an entitlement to pocket money or a duty to make regular standardised payments. A trust need not have a formal policy where it lawfully considers each patient’s financial and therapeutic circumstances. A standard payment unrelated to therapeutic need would fall outside the statutory power.

The claimants were Romanian nationals detained in hospital under the Mental Health Act 1983 after hospital orders were made. They sought regular pocket-money payments while in the defendant NHS foundation trust’s care, relying principally on section 122 of the 1983 Act and the trust’s statutory powers under the National Health Service Act 2006.

Section 122 had been amended by section 41 of the Health and Social Care Act 2012, removing the Secretary of State’s payment power in England. The claim therefore required determination of whether the trust had an independent statutory power, the scope of that power, whether it had been lawfully exercised, and whether the absence of a policy or regular payments was unlawful.

1. Power. The claimants’ reliance on section 122 of the Mental Health Act 1983 was misplaced because the relevant power had been abolished in England by section 41 of the Health and Social Care Act 2012. However, sections 43, 46(6) and 47 of the National Health Service Act 2006 conferred on an NHS foundation trust a sufficiently wide power to provide occasional financial assistance to in-patients.
2. Scope. The power could be exercised only for, or in connection with, the trust’s statutory functions. Its exercise therefore had to relate to the prevention, diagnosis or treatment of illness or the promotion and protection of public health. Payments had to be commensurate with the patient’s therapeutic treatment and could not operate as general social-security payments.
3. Exercise of discretion. The amount, timing and frequency of payments were matters for the trust’s discretion, taking account of all relevant circumstances, including financial circumstances and therapeutic needs. The trust had regularly assessed and addressed the claimants’ financial needs, including benefits, clothing, travel and documentation expenses. That was a lawful exercise of the power.
4. Policy and consistency. The absence of a formal policy did not itself make the exercise unlawful. The public-law principle that similarly situated persons should be treated similarly remained applicable, as recognised in R (Hussein) v Secretary of State for the Home Department [2012] EWHC 1952 and R (O’Brien) v Independent Assessor [2007] UKHL 10. But individual assessment was required because financial and therapeutic needs were not standardised.
5. There was no entitlement to payment and no duty to make regular payments. The claim was dismissed.

The judgment was a first-instance decision of the Administrative Court. Permission had previously been granted by Michael Fordham QC, sitting as a Deputy High Court Judge, on 16 January 2017.