R (On the Application Of W & Ors,) v Secretary of State for the Home Department  EWHC 1532 (Admin)
15 May 2014
Queen’s Bench Division,
(1) The Immigration Rules (HC385) were amended on 31 October 2011 so as to insert a sanction to be imposed on some people not resident in the UK who were seeking to enter or remain in the UK, but who had unpaid NHS debts of at least £1000. Those debts were not to have been incurred for accident and emergency services, family planning services and the treatment of illnesses/infections with public health implications. The sanction was that leave to remain would normally be refused.
(2) By this claim, the regime itself was not challenged, but instead the way that information is transferred by the NHS to the Secretary of State for Health and the Home Office. The transmitted information is the name and date of birth of the patient and, where available, their address, nationality and travel documents, along with the amount and date of debt.
(3) The Claimants had an interest in this case due to their having been charged or their potentially being liable to charging.
(4) The Claimants pursued two grounds of challenge:
(5) The NHS had no power to pass on information to the Secretary of State and the Home Office for a variety of reasons, including that the information was confidential;
(6) Even if there was such a power, the Secretary of State’s guidance set out in "Guidance implementing the Overseas Visitors Hospital Charging Regulations" ("the Guidance") was unlawful as it required the NHS to share information, where the NHS should have a discretion to do so.
(7) The main provisions of the National Health Service (Charges to Overseas Visitors) Regulations (2011 SI 2011/1556, as subsequently amended in 2012) are that NHS bodies are under a duty to charge and recover charges from overseas visitors who are not otherwise exempt from charges. The NHS has problems identifying overseas visitors for whom services are chargeable and recovering those charges proves problematic. he purpose of the sanctions was to assist the NHS with debt recovery and deter deliberate abuse of NHS services.
(8) HELD: In relation to ground (a), the Court noted that the information transmitted did not include details of the patient’s medical history, the treatment sought or the treatment received. In fact, the appendix to the Guidance specifically provided that personal medical information should not be transmitted.
(9) The information was neither confidential nor private and was no different from that which might be routinely supplied to a debt collection agency. The Court thus rejected the argument that the information communicated pursuant to the Guidance was confidential and should therefore not be transmitted.
(10) In any event, the Court stated that it would have found that the patient would have had the medical treatment in the knowledge that specified limited information might be transmitted. The Guidance makes clear that a patient must be informed that failure to pay charges may carry immigration sanctions. Moveover, patients are re-informed of this at each stage of interaction with the NHS, and registration and invoices also state that the information may be transmitted.
(11) Carrying out the balancing act of assessing whether transmission of the information pursued a legitimate aim, the Court considered that there were four factors that led it to the conclusion that patient confidentiality was not being infringed and pursued a legitimate aim. First, only limited information is transmitted. Second, patients have been informed that their information will be transmitted. Third, the transmission pursues a legitimate aim of recovering NHS debts, and it is difficult to recover debts from non-residents. The Court noted that the transmission went no further than necessary to pursue the aim of the NHS recovering the debt owing to it. Finally, the Court noted the limited number of people who would see the transmitted information. The Court thus concluded that on balance, the transmission pursued a legitimate aim and was proportionate to any low level of harm caused by the limited disclosure.
(12) The Court thus rejected the contention that the NHS and Secretary of State were prevented on passing on limited information relating to a non-resident patient who has unpaid debts of £1000 and over for medical services covered by the immigration sanctions scheme.
(13) The Court held that fundamental common law rights were not being overridden by the transmission of the information. Given that the information transmitted does not cover any of the medical condition of the patient, it falls outside the provisions set out in the National Health Service Act 2006, which concerns the restrictions on the handling of information.
(14) In relation to the power of NHS to transmit information, the NHS has general powers to do anything necessary and expedient in connection with its functions as set out in Paragraph 15 of Schedule 4 to the National Health Service Act 2006. To recover charges from overseas visitors is clearly a function of the NHS.
(15) The Court held that the cumulative effect of the Guidance had the effect of requiring the transmission of information. It is an obligation, not a discretion. Even if the provision of information were discretionary, it would still be expedient and in accordance with the National Health Service Act 2006 to provide it. The transmission of the information is an essential part of the regime of recovering debts from overseas patients.
(16) The Court also found that the Secretary of State had the power to transmit information under section 1 of the National Health Service Act 2006 as it leads to the recovery of funds to aid with the functioning of the Secretary of State’s functions. In any event, the transmission of information was clearly within identifiable governmental purposes.
(17) The NHS staff treating the patient might not have all of the information necessary to know whether to impose an immigration sanction. Moreover, NHS staff are not trained to determine whether or not an immigration sanction should be imposed. There being one decision maker means that the same policy is applied to all persons, rather than the policy being implemented differently by different NHS bodies.
(18) The Court thus concluded that there had been no discretion and no fettering of a discretion.
(19) The claim thus fell to be dismissed.
 – Mounting debt.
 – No medical evidence.
 – Least intrusive.
 – Not confidential.
 – Permitted to be transmitted.
 – Informed of sanctions.
 –  – Factors to consider.
 – Proportionate.
 – No gateway requirement.
 – Ground (a) conclusion.
 – No breach common law rights.
 – Statutorily permitted.
 – Power to transmit.
 – Secretary of State’s power to transmit.
 – Governmental purposes.
 –  – Discretion inappropriate.
 – Uniform policy.
 – No fettering.
 –  – Conclusion.