denotes premium content | Jan 9 2009 Feature
posted 17 Dec 2007 in Volume 13 Issue 2
Reimbursement of fees for private operation European Surgeries Ltd v Cambridgeshire Primary Care Trust.
[2007] EWHC 2758 (Admin)
In October 2003 Mr Harry Cooper underwent a private cataract operation on his left eye at the Cromwell Clinic in Huntingdon. The operation was carried out by a German ophthalmology surgeon and was arranged by European Surgeries Ltd, a medical service provider. Mr Cooper paid £1,475 for the operation. The Primary Care Trust (PCT) neither commissioned the operation or reached a view that it was clinically necessary.
Three months later, the claimant company wrote to the PCT, requesting that it reimburse Mr Cooper the sum of £756, which it said was the ‘tariff’ i.e. the current domestic rate for such an operation, based on Article 49 of the EC Treaty and various authorities of the European Court of Justice. This, the PCT refused.
The company applied for judicial review of the PCT’s decision, seeking: a mandatory order that the PCT reimburse the patient at the appropriate rate; a declaration that the PCT was obliged to reimburse patients under its care for treatment by European Union (EU) providers; and a declaration that the PCT could not require advance authorisation for patients undergoing out-patient treatment, whether in hospitals or elsewhere. The patient had never asked the PCT for reimbursement of the tariff cost and, up until the company had requested payment, the PCT was unaware that the operation had been carried out.
The PCT argued that any claim lay with the patient and not the provider; as the patient had not made a claim, it did not have to reimburse the company.
HELD:
(1) The company had no justiciable claim, either under English law or Community law. What was being claimed was a mandatory order against the trust to reimburse the tariff cost of the operation in circumstances where:
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Mr Cooper had never made any such demand of the PCT;
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The company had been fully paid by Mr Cooper;
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The doctor and the clinic had been paid;
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The company was not acting as Mr Cooper’s agent;
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Mr Cooper had not assigned to the company any right of action against the PCT for £756.
As such the relief sought was not justiciable. Any right to claim the tariff cost of the operation lay with the patient and not the company. And, as none had been made, the PCT was not obliged to entertain or consider a request by the company to pay the tariff cost to the patient. There was no public-law duty upon the PCT to consider such a request, so the PCT had done nothing unlawful in refusing the company’s demand.
(2) The company was not seeking any concrete relief for itself. There was no justiciable claim, in the company being able to use a declaration in future for marketing purposes, to tell its customers that the PCT would have to reimburse them. The declaration sought was highly theoretical. Liability in future cases would depend on the precise issues in each case. It would depend on whether the NHS had commissioned the treatment and, if not, whether the NHS would or would not have commissioned it. They also included whether there was undue delay, or whether the treatment took place in the
Urgent application for Welfare Decision
LLBC v (1) TG
[2007] EWHC 2640 (Fam)
‘TG’, was an elderly man who had dementia and physical problems following a stroke. From 2003, he had been a resident in a care home. That home had given notice to him but before the contract ended TG was admitted to hospital. One of his daughters, ‘J’, and his grandchild, ‘K’, who lived together, wanted him to be released by the hospital into their care. The local authority disagreed with this proposal as their home had only one bedroom and they had previously fed TG (a diabetic) inappropriate food. However, the hospital discharged TG to their care.
The local authority applied to the High Court, exercising its inherent jurisdiction for an urgent order for TG to be placed in a care-home setting. The application commenced prior to the introduction of the Mental Capacity Act 2005, heard before commencement, but the judgement was delivered after. The order was made, containing liberty to apply provisions for the family to apply to the court to vary, discharge or set aside the order,
Further interim proceedings determined that TG lacked mental capacity to make the decision and allowed TG to have short visits to the daughter and grand-daughter. As this went well, TG went to live with them. The parties agreed that it was in TG’s best interest for this to continue.
The court was required to determine if the original decision of the local authority to make a without notice application, or to issue proceedings in the first place, was justified.
The Court noted that there had been a failure to communicate between the professionals and the family, which directly led to the local authority’s decision to start proceedings and to the confrontational, and at times largely intractable, circumstances thereafter.
HELD:
(1) The local authority was justified in bringing proceedings as TG lacked capacity and there was a legitimate and reasonable dispute as to TG’s best interests;
(2) The Court had to approach the matter concerning a vulnerable adult as it would a child. The court had to evaluate as best it could the degree of urgency, the risks of intervening by way of making an order and the risks of not intervening at that stage;
(3) The local authority had failed to substantiate all but one of the key allegations that it made in the without notice application. The Court found that the local authority had failed to attend a meeting to discuss the discharge of TG and failed to apply to the Court earlier. J and K’s accommodation had two bedrooms and was suitable to meet TG’s needs. There was no evidence to show that J and K had continued to feed TG with inappropriate food, after being asked not to, and had received diabetes training. As a result, the making of the without notice order was not justified;
(4) The placement of TG in the care home did not meet the test for deprivation of liberty. TG was visited largely on an unrestricted basis and was entitled to go out for outings. TG was compliant and expressed himself as happy to reside in the care home. In addition, the interference with TG’s right to family life under Article 8 of the Human Rights Convention was in accordance with the law, had been sanctioned by the court, was for the protection of his health and was proportionate as it maintained the status quo given the termination of TG’s placement at his original care home. As such, there was no breach of Article 5, Article 6 or Article 8. His placement at the care home would likely have been justified, had the application been made on notice.
Case digest prepared by Caroline Bielanska, chair of Solicitors for the Elderly: www.solicitorsfortheelderly.com
