R (Mitocariu) v Central and North West London NHS Foundation Trust  EWHC 126 (Admin)
Hospital pocket money Two hospital order patients contended that if for any reason they were not in receipt of benefits then the trust should provide regular payments to ensure their dignity was maintained whilst in care. (1) The trust did have a power, arising from s43 NHS Act 2006 (which identified the functions of foundation trusts), and either s46 or s47 (which provided sufficiently general powers), to make payments to patients. Any contract with NHS England purporting to restrict the statutory power would be ultra vires. Similarly, any payment outside the s43 purposes (namely, the provision of services to individuals for or in connection with the prevention, diagnosis or treatment of illness and the promotion and protection of public health) would be ultra vires. (2) The amount, timing and frequency of payments was a matter for the discretion of the Defendant, taking into account all relevant factors, including the specific therapeutic requirements of the patient. (3) A standardised approach of making regular payments irrespective of and unrelated to the therapeutic needs of the patient, as sought by the Claimants, would be outside the powers granted to a foundation trust. (4) On the facts, the Defendant had lawfully exercised its power: the financial circumstances of the patients were regularly considered and addressed appropriately (e.g. paying for a winter coat and travel costs). (5) The absence of a policy did not mean that the Defendant had acted unlawfully.
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Regina (Mitocariu and another) v Central and North West London NHS Foundation Trust
David Casement QC sitting as a deputy High Court judge2017 Dec 12; 2018 Jan 31
National Health Service— NHS Foundation Trusts— Provision of financial assistance— Patient detained pursuant to hospital order— Patient requesting payment for personal expenses— Scope and nature of trust’s power to make payment to patient— Whether trust lawfully exercising power— Whether duty to make payment— National Health Service Act 2006 (c 41), ss 43, 46, 47
An NHS foundation trust has power under sections 46 and 47 of the National Health Service Act 2006 to make occasional payments to inpatients but only where they are for the purposes of or in connection with its functions under section 43 of the 2006 Act. The amount, timing and frequency of those payments are a matter for the discretion of the trust taking into account all relevant factors including financial needs and the specific therapeutic requirements of the patient. The discretion of a trust to make payments is limited to that which is commensurate with their therapeutic treatment being provided. There is no entitlement to such payment nor is there a duty to make payment (paras 25, 27, 28–29, 31, 33, 38, 40).
Where, therefore, the claimants were detained pursuant to hospital orders made under the Mental Health Act 1983 and their requests for pocket money under section 122 of the 1983 Act, as amended, in respect of occasional personal expenses were refused by the defendant NHS foundation trust, and the claimants contended that they were entitled to payments in respect of occasional personal expenses where they would otherwise be without resources to meet those expenses—
Held, claim dismissed. Since the trust regularly inquired as to the claimants’ financial needs and those needs were met by the trust in a manner commensurate with the therapeutic treatment being provided, the trust had exercised its power to make payments lawfully, notwithstanding the absence of a policy to prevent arbitrary treatment (paras 32, 37, 41).
Adam Wagner and Jessica Elliott (instructed by Appleman Legal) for the claimants.
Parishil Patel (instructed by RadcliffesLeBrasseur) for the trust.
Reported by: Fraser Peh, Barrister