R (Johnson) v Royal Free London NHS Foundation Trust  EWHC 1143 (Admin)
This article originally appeared in Issue 4 (March 2020).
The Claimant was seriously ill with cancer, for which she was receiving medical treatment, most recently a cycle of palliative chemotherapy infusions. The “overseas visitors team” at the Defendant NHS Trust received an anonymous phone call asserting that the Claimant was not in fact eligible for NHS treatment because she resided in Nigeria and only travelled to the United Kingdom for health care. The Defendant then investigated this, by way of telephone calls, letters and interviews with the Claimant and members of her family. She was asked to provide further evidence. The Trust also obtained, from the Home Office, a list of the Claimant’s travel movements in and out of the UK for the previous five years.
Based on the information available to it, the Defendant informed the Claimant that it had concluded that the Claimant was not ordinarily resident in the UK, and that she was ineligible for free NHS treatment under the NHS overseas visitors’ charging regulations. She was presented with an invoice for £71,000, and informed that after her current cycle of chemotherapy treatment, no more treatment would be provided.
The Claimant brought judicial review proceedings, and the matter came before the court, prior to a decision on permission, as a result of her application for interim relief. Judgment was given in that context.
Judgment was given by Mrs Justice Lang. The judge set out the background, and the circumstances of the hearing. It was noted that all the evidence had not been provided, and that the Claimant had not yet been provided with the material from the Home Office, which she indicated she sought to challenge. The application proceeded however, as the Claimant, who was in person, indicated that she wished to do so.
Having set out the evidence, the judge considered the legal framework, which is contained in the National Health Service (Charges to Overseas Visitors) Regulations 2015. Regulation 3 requires that in respect of an overseas visitor, where an NHS body is satisfied that the case is not one where the Regulations provide for no charge to be made, that the NHS body “must make and recover charges for any relevant services it provides…”. The judge also noted the guidance issued by the Department of Health as to the meaning of “ordinarily resident” and the concept of “settled purpose”.
The judge proceeded to dismiss the application, ruling that the Claimant had not established an even arguable claim. The judge assessed the accounts given by the Claimant had been “inconsistent”, that her documentary evidence of residence in the United Kingdom was “patchy and incomplete”, and that the Home Office documents were “the most damning evidence against her”, and was “powerful evidence that the Claimant has not been ordinarily resident in the United Kingdom”, and that “she has not been truthful with either the Defendant or this Court”.
The judge then proceeded to consider the evidence as to the treatment that that Claimant was receiving. She held that the Claimant “would be able to return to Nigeria to obtain further chemotherapy if she wished”, and that regardless of her means, if the Claimant remained in the UK she would still be entitled to any immediately necessary and urgent treatment. In the circumstances, she decided that there was no arguable breach of Articles 2, 3 or 8 of the ECHR.
This case came before the court in unsatisfactory circumstances, including that the judgment was given prior to development of the substantive case and disclosure of relevant evidence, and also in that the Claimant was unrepresented. There will no doubt be further such cases before the courts, given what has been made a mandatory requirement on NHS Trusts that they “must” make and recover charges for those who do not qualify for free NHS treatment. The approach of the court is of note: despite judicial review proceedings being ill-suited to disputed questions of fact, and despite the lack of evidence, the judge was prepared to make strong findings of fact against the Claimant, including that she was not in fact ordinarily resident, that she had been dishonest, and that it was open to her to return to Nigeria and receive treatment there. In the circumstances, and no doubt in part as the Claimant was not represented, the court did not explore issues such as the standard of review to be exercised over the Trust’s findings, or the quality and detail of the investigation that is required from an NHS Trust before reaching such a decision. The question of the impact of the ECHR on such cases will also no doubt be much more of an issue in subsequent cases.