Court of Appeal confirms no consultation duty for NHS advance charges

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In R (MP) v Secretary of State for Health And Social Care [2020] EWCA Civ 1634, the Court of Appeal upheld the High Court’s decision that there was no need for the government to consult the public before introducing advance charging of overseas visitors for NHS treatment. The High Court had also rejected the argument that the regulations breached the Public Sector Equality Duty and that allegation was not renewed before the Court of Appeal.

The challenge was to 2017 regulations requiring NHS service providers to secure advance payment of the estimated cost of treatment before providing treatment to people who are not entitled to free treatment. There are exemptions for immediately necessary services, such as life-saving emergency treatments and the treatment of pregnant women and newborn babies. But the new regime required advance charging for most other forms of medical treatment.

Before the Court of Appeal, the claim focused on the High Court’s decision that previous consultations on changes to the charging regime had not amounted to a consistent practice such that the public could expect to be consulted before future changes. Unfortunately, the court reviewed the case and came to the same conclusion:

On balance, it seems to me that we would not be justified in interfering with the Judge’s assessment. While it is fair to say that the Secretary of State had in more recent years consulted on changes to the charging regime that were to the disadvantage of overseas visitors, it remained the case that the Secretary of State had not consulted on by any means all amendments to the regime and, more specifically, that “when there was consultation in 2003 and 2010, not all the changes made were ones that were consulted upon”. The Judge was, in the circumstances, amply entitled to see the overall picture as mixed and to consider that no legitimate expectation of consultation had arisen.

The result is not surprising given the general reluctance of the Court of Appeal to interfere with the findings of first instance judges. Even if the claim had succeeded, the government would probably have simply remade the regulations, albeit having conducted a consultation exercise first.