The High Court in R (OK) v The Royal Free London NHS Foundation Trust [2021] EWHC 3165 has rejected another challenge to the operation of the NHS charging regulations.

This claim for judicial review was brought by OK, a Nigerian man living in England since 1990 but without immigration status since receiving a deportation order in 2014. OK remained in the UK and, in 2019, was diagnosed with kidney failure after being bitten by his pet puppy (he tells the story here). He received dialysis treatment three times a week from the Royal Free London NHS Trust (at the eye-watering cost of 150% of the national tariff) with free travel to and from appointments. 

In December 2019, the trust informed OK that his dialysis was neither an “urgent service” or “immediately necessary service” under the NHS (Charges to Overseas Visitors) Regulations 2015. As such, it was unavailable to overseas visitors — which he was for these purposes — without payment in advance. OK’s doctor stopped his treatment and told him that should he feel unwell he should visit A&E instead. If A&E found that he needed dialysis, he could get it at the hospital’s renal department.

Immigration status not irrelevant factor

OK argued that the Trust had withdrawn treatment on the basis of an irrelevant consideration: his immigration status. The court rejected this, saying that:

Dr. Cross was required by the Regulations to take into account the Claimant’s immigration status and to distinguish between [ordinary residents] and [overseas visitors] for valid reasons (charging) and so she did. For instance she was required to try to determine and had to reject providing any non [urgent service] treatment to the Claimant, without advance payment.

The court also concluded that the issue of treatment by ad hoc A&E visit rather than regular dialysis was largely a matter of clinical judgment and so declined to intervene:

It was implied by the Claimant that either due to convenience or outcome or for some other reason, regular scheduled dialysis at the Mary Rankin Centre is somehow medically better than dialysis provided in the hospital’s renal department. There is no evidence before me that it is… The allocation of NHS resources and the method of delivery of those resources, the choice of treatment pathways or locations or methods, in this claim are matters for the clinicians and the relevant trust, not for judicial review…

… the decision on which of the various available treatment plans was to be provided was a matter of clinical judgment and the two options under consideration in this claim were, on the evidence before me, both proper options.

For good measure, the court concluded that the claim was academic, as OK’s regular dialysis had already restarted following a deterioration in his condition.

Charging regime “unfit for purpose”

This is not the first unsuccessful challenge to the charging regime. But it comes in the wake of a damning report published by the Institute of Public Policy Research, which exposes critical flaws including the racial profiling of chargeable patients. It remains to be seen whether the courts will start listening to these criticisms in future challenges.