Judge: Court of Appeal (Rix, Aikens and Black LJJ)
Citation:  EWCA Civ 471
Summary: We note this decision because we had previously noted the first instance decision ( EWHC 521 (QB), concerning the question of whether a patient detained under the MHA 1983 is entitled to pay for their own costs and treatment. Mr Coombs did not have the capacity to make the decision whether to do so, and had the benefit of a Deputy; HHJ Platts at first instance found (1) Mr Coombs was entitled to pay for his own care and treatment if the detaining authority were in agreement with the option that they wished to choose; and (2) it made no difference that the decision whether to make such payment was made by the Deputy.
The Court of Appeal dismissed the appeal brought by the PCT. There was no consideration in the judgment of Lord Justice Rix (with whom Aikens and Black LJJ agreed) to questions of Mr Coombs’ capacity, but he held thus in concluding that there was no reason in public policy or otherwise to prevent payment:
“33. These authorities [including, for instance, Rabone v. Pennine Care NHS Trust  UKSC 2,  2 AC 72], variously relied on by both parties, are of only indirect assistance. However, in my judgment they do at least demonstrate the following. First, analogies may be made for many purposes. When it comes to assessing the vulnerabilities of detained patients and thus the state’s responsibilities for them, it is relevant to refer to their lack of control over their own lives. In such a context it is understandable that the analogy of prisoners is apposite. Even in that context, however, Rabone shows that informal patients may suffer similar vulnerabilities and that the state owes similar responsibilities to them. Secondly, despite the apposite analogy with prisoners, nevertheless for many purposes it remains equally important to remember that detained patients are in hospital because of mental disorder and in order to treat them therapeutically, not for the purposes of punishment. Thus, within the necessary restraints, it may be appropriate to recall that the hospital is their home. Thirdly, when it comes, however, to concentrate on the state’s responsibility to detained patients with respect to their treatment and care, the cases underline the similarity of such patients with all others who are entitled to look for help from the NHS: they are entitled to the same duty as all who may suffer physical or mental illness. Fourthly, private mental hospitals exist which may contain detained patients, that is to say patients detained under the provisions of the MHA 1983, who may be either private patients or patients for whom the state has NHS duties of care which it meets by buying in private services.
34. In these circumstances, it seems to me that there is nothing inherent in the structure or wording of the MHA 1983 or the 2006 Act, and nothing by way of public policy, to exclude absolutely the possibilities of detained patients (or their family or others holding responsibility for looking after their assets) paying for or contributing in part to the cost of their treatment or care. Presumably, private patients detained in a private hospital do exactly that. Detained patients who are being looked after by an NHS authority will have most, if not all, of their costs funded by the state: but even in their case, it may be possible, as in the case of any patient within the NHS system, to purchase private accommodation or other top-up care facilities available within the applicable Guidance. Of course, it will not be possible to provide for care or treatment which is in conflict with the recommendations of the responsible clinician. Nor may it always or perhaps even often be possible within the NHS system to purchase additional care or treatment facilities without running into the principle of free provision and the limitations upon the exceptions to that principle. However, the cases cited above show that responsible clinicians may recommend treatment or care which the NHS is not under a duty to provide, because it goes beyond its statutory duty. There seems to me no reason in statute or public policy why there should be an absolute bar on the provision of facilities, recommended by or consistent with the recommendations of the responsible clinician, which may be available at a price, within or without the NHS system.
35. Ms Richards submits, as she did below, that private payment may create difficulties of a practical nature, as where private funding previously available breaks down. However, as the judge said, such difficulties of funding may always raise their head, and do not create public policy bars of their own.
36. It seems likely that the same answer is applicable whether the detained patient has a claim against a tortfeasor or whether it is simply a matter of a personal choice to pay. Similarly, it seems also quite possible that even detained patients under Part III have to be assimilated for these, as for other purposes, with detained patients under Part II. However, it is not necessary in this case to determine those matters.”
Comment: The result of this appeal is perhaps not altogether surprising, but the extracts cited above are of some interest both for their clear emphasis upon the therapeutic role of detention under the MHA 1983 and for the refusal to exclude that a patient who has the financial ability to maximise the benefits available to him during such detention from so doing.