NHS not required to provide non-urgent treatment when patient entitlement is uncertain

High Court rules that it was not possible to decide if a Nigerian woman was ordinarily a UK resident, and entitled to free NHS medical treatment.

The High Court’s decision in Lawal v North Middlesex Hospital

Executive summary

The High Court has ruled that it was not possible on the available evidence to decide whether a Nigerian woman was ordinarily resident in the UK so as to be entitled to free NHS medical treatment for her chronic renal failure.

The court therefore refused to grant a request which would have required North Middlesex Hospital (‘the hospital’) to examine her for the purpose of free medical treatment because there was insufficient evidence that she required urgent treatment.

In detail

The claimant, a 75-year-old Nigerian woman who suffered from chronic renal failure, applied to the court for an order compelling the hospital to examine her. She lived with family in the UK, but her application for leave to remain was pending.

She had been treated by the hospital until November 2017 when it decided that she would have to pay for treatment as an overseas visitor under the terms of the National Health Service (Charges to Overseas Visitors) Regulations 2015.

The claimant was informed that if she needed urgent treatment she should attend the accident and emergency department and would be treated. She subsequently attended A&E with the clinical notes of her visit stating that her renal condition had worsened, but that there was no acute need for dialysis.

The claimant argued that she was a family member of a British citizen and was ordinarily resident in Great Britain for the purposes of the National Health Service Act 2006 s.175, and therefore entitled to free NHS treatment.

The court’s decision

The claimant’s application was refused. The court did not dispute that there was a serious issue to be tried but it was not possible at that time to say that she had no entitlement to free treatment, although on the information before the court, she would face an uphill struggle.

Without further medical evidence, there was not enough urgency for the court to make the order which the claimant was seeking. The balance of convenience did not lie in favour of making an order that the hospital had to provide free treatment.

The claimant could go back to her GP or A&E and would not be required to pay for treatment if it was immediately necessary or urgent. If not, the treatment would be considered to be elective and she would then have to pay for it.

Implications

Although this was an interim decision and there will need to be a trial to decide whether the claimant is entitled to free treatment, this decision suggests that the NHS was right to refuse to provide free non urgent treatment where the patient has failed to establish their entitlement to free NHS treatment. It is also interesting to see the court taking a robust approach to the sensitive issue of eligibility for free treatment, particularly when trusts continue to find themselves under the severest of financial pressures.

The current issues around the Windrush generation do however demonstrate the need to consider funding issues carefully and sensitively.

If you have any questions or would like more information about our legal update, please contact Rachel Kneale or Richard Jolly.

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