It is unlawful and irrational for a primary care trust (PCT) to withdraw nursing care from an eligible patient on the basis that they have the means to fund a privately provided care package by reason of damages received from an insurance company.

The Claimant was seriously injured in a road traffic accident in January 2001 when she was nine years old. She sustained spinal injury that left her tetraplegic and dependent upon a ventilator. Liability was not disputed and following the commencement of proceedings judgment was entered on a full liability basis.

The Defendant assessed the Claimant as being eligible for future healthcare. Settlement was reached with the interested party insurer company in October 2009 agreeing a periodical payment order (PPO) to commence from 15 December 2011, to allow for a transitional period to transfer the Claimant to a private care regime.

The Defendant withdrew its services from the time of settlement and argued that:

  1. Its decision was based on the Claimant having chosen future private treatment (with the security of an indemnity in the interim) and that it was entitled to draw a distinction between someone who had the means to pay for private care and someone who had recovered damages for personal injury.
  2. It was entitled to rely on the 'tortfeasor pays' principle as being an exception to the principle that NHS treatment should be free to all (regardless of means).

The Claimant applied for judicial review of the Defendant’s decision.

Held

Application granted. The Judge found that the Defendant’s decision to withdraw continuing care was unlawful and irrational. A claimant who was successful in recovering damages was entitled to use the damages as he or she pleased. There was no clear distinction between a person who was independently wealthy (or was insured in relation to medical expenses) and someone who had sufficient means to provide for his or her care privately by reason of what had been recovered in damages. In each case, to refuse treatment by reference to the means of the patient would be contrary to the principle that the NHS was not a means-tested service and was provided to patients on the basis of their medical needs without reference to their financial position.

Accordingly, the Claimant’s need for continuing healthcare would only be removed when a private package had been successfully established and implemented.

The Defendant’s attempt to rely on the "tortfeasor pays" principle was misplaced. Conventionally, the principle applied to the assessment of damages in personal injury litigation; it had no place in determining whether NHS care should be withheld.

Comment

This case reaffirms the principle that NHS healthcare is free at the point of delivery. Although the Judge considered and endorsed the principles set out in Crofton v NHSLA that the tortfeasor should pay, he was not prepared to remove from claimants the opportunity to choose NHS services. Therefore, where NHS provision would ordinarily be available, the Judge held it would be wrong for the PCT not to provide such care simply because a claimant had indicated they had elected to have their care provided privately.

This case takes the Court of Appeal decision in Peters a little further, as that involved local authority provision as opposed to NHS provision. Booker enhances the need to agree case specific undertakings between parties prior to settlement to insure against double-recovery. Arguably Booker extends that need even in non-Court of Protection cases. However, whilst the PCT suggested they ought to have been included in negotiations concerning the wording of undertakings, the Judge did not agree as that would open up a costly and timely layer of bureaucracy in a great deal of catastrophic injury settlements.

Permission to appeal was refused but may be sought from the Court of Appeal.