R (Mitocariu) v Central and North West London NHS Foundation Trust  EWHC 126 (Admin)
"These proceedings raise points of principle in respect of the powers of NHS Foundation Trusts pursuant to the National Health Service Act 2006 ("the 2006 Act") regarding financial assistance to patients whilst they are detained pursuant to hospital orders made under the Mental Health Act 1983 ("the 1983 Act"). In essence they raise a question about the powers or duties of NHS Foundation Trusts in circumstances where the patient receiving mental health care is or appears to be unable, for whatever reason, to fund occasional expenses. ... The reliance by the Claimants upon section 122 of the 1983 Act was misplaced as the power to make payments thereunder was abolished by section 41 of the 2012 Act in so far as patients in England were concerned. ... The essential issues that arise in these proceedings are as follows: (i) did the Defendant have power to make payments to the Claimants; (ii) what was the scope and nature of the power, if any, held by the Defendants to make payments; (iii) did the Defendant lawfully exercise the power; (iv) did the absence of a policy mean the Defendant acted unlawfully; (v) was the Defendant under a duty to make regular payments to the Claimants in the amounts claimed or any amounts. ... The power exists under the 2006 Act to make what have been described as "pocket money payments" to in-patients but that power only arises and can only be exercised for and in connection with functions identified under section 43 of the 2006 Act. The discretion of a foundation trust to make payments is limited to that which is commensurate with the therapeutic treatment being provided. There is no entitlement to payment neither is there a duty to make payment. The power that is held by the foundation trust is one which must take into account all the circumstances of the individual case including financial needs and the nature of the therapeutic treatment being provided."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
The WLR Daily case summaries
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