Coombs v Dorset NHS PCT & another

Summary: Although this case relates to the Mental Health Act 1983 ('MHA'), it merits a mention, albeit briefly because permission to appeal has been given. It was common ground between the parties that an 'ordinary' patient was entitled to free hospital care but could choose to arrange and pay for their own. The issue was whether the fact that they were detained under the MHA deprived them of this 'right'. In deciding that such a patient was not prevented from paying for his own care and treatment, HHJ Platts held:

"63. … Decisions as to where he is treated would remain with the managers of the hospital; decisions about treatment with the responsible clinician. All he is choosing to do is provide the money to facilitate placement or treatment, which is deemed appropriate by the detaining authority, and I see no difficulty with that. 64. I do not categorise this as charging for the provision. The detaining authority would always have to be in the position to provide suitable and appropriate care and treatment without the patient contributing. If the patient however chooses to pay for that, or for any other option, and the detaining authority agree, then why should he not be able to?"

It did not make a difference whether the patient had the mental capacity to make such a decision or whether, as here, they had a deputy appointed under the Mental Capacity Act 2005 to do so.

Comment: Whether this preliminary issue was correctly decided will be determined on appeal. The implications certainly at first blush seem significant, with wealthier detained patients being afforded greater access to treatment options and placements. But aside from the central issues, it is interesting to note that the Judge recognised the distinction between having 'capacity' and having 'insight', before stating at para 54: "This lack of insight and vulnerability will undoubtedly make any decision as to whether or not to offer to fund treatment very difficult for a patient."