Coombs v North Dorset NHS PCT  EWCA Civ 471,  MHLO 35
"Can an involuntary patient detained in a mental hospital under the provisions of the Mental Health Act 1983 pay for his care or treatment, or is such a possibility denied the patient (or his family on his behalf) by the provisions of that Act (the "MHA 1983") and/or public policy? ... 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. 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. 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. It is sufficient to say, in the case of this claimant, who is a detained patient within Part II of the MHA 1983 and has a claim against admitted tortfeasors, that the answer to the issue posed, namely whether there is anything in public policy or otherwise which prevents him paying for his own care or treatment, is No." [Summary required; external summary available.]
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Admission for treatment — Compulsory detention — Claimant detained in mental hospital — Whether statutory or public policy prohibiting claimant contributing to cost of treatment or care — Mental Health Act 1983 — National Health Service Act 2006, s 1(3)
Coombs v North Dorset NHS Primary Care Trust and another
;  WLR (D) 158
CA: Rix, Aikens, Black LJJ : 30 April 2013
There was nothing inherent in the structure or wording of the Mental Health Act 1983 or the National Health Service Act 2006, and nothing by way of public policy, to exclude the possibility of a person detained under a provision of the 1983 Act from paying or contributing to the cost of his treatment or care.
The Court of Appeal so held in a reserved judgment dismissing the appeal by the defendants, North Dorset NHS Primary Care Trust and Nottinghamshire Healthcare NHS Trust, from the order dated 17 February 2012 of Judge Platts sitting as a judge of the Queen’s Bench Division, who had held on a trial of a preliminary issue that a person compulsorily detained under a provision of the 1983 Act, such as the claimant, Timothy Coombs (suing by his brother and litigation friend David Coombs), could pay for his own care and treatment. The defendants had admitted liability for negligence in respect of brain injury suffered by the claimant in a fall from an ambulance, and the question had arisen in the context of the assessment of damages.
RIX LJ said that it was the defendant’s case that a detained patient was analogous to a prisoner; his care was wholly in the hands of the authorities, who had complete control over his treatment, and it would be against public policy for the patient to have a role in funding his treatment. However, the analogy broke down; the function of detention was not punishment, but a necessary adjunct to therapy. The defendants relied on section 1(3) of the 2006 Act, which required the services provision of which it was the Secretary of State’s duty to ensure to be free of charge. The subsection itself acknowledged that the NHS could charge for its services where expressly permitted by an enactment. A patient could be detained in a private hospital. There was nothing inherent in the structure or wording of the 1983 Act 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. Detained patients being looked after by an NHS authority might be able to purchase private accommodation or other top-up care facilities. It would not be possible to provide for care or treatment which was in conflict with the recommendations of a responsible clinician; however, responsible clinicians might recommend treatment or care which went beyond what it was the statutory duty of the NHS to provide. There was nothing to prevent the claimant from paying for his own care or treatment.
AIKENS and BLACK LJJ agreed.
Appearances: Jennifer Richards QC (instructed by DAC Beachcroft LLP) for the defendants; Martin Spencer QC and Tejina Mangat (instructed by Moore Blatch Solicitors, Lymington) for the claimant.
Reported by: Alison Crail, Barrister.
© 2012. The Incorporated Council of Law Reporting for England and Wales.
 All ER (D) 250 (Apr)