On 31st October 2011, the Immigration Rules (HC385) (‘the Rules’) were amended so as to insert an immigration sanction which could be imposed on certain people who were not resident in the United Kingdom and who were seeking to enter or to remain in the United Kingdom. These people had unpaid NHS debts of at least £1000, which were not incurred for accident and emergency services, family planning services or the treatment of illnesses or infections with public health implications. The immigration sanctions penalised applications for entry clearance, leave to enter the United Kingdom and leave to remain, which would then ‘normally’ be refused.
The immediate challenge concerned the way in which certain specified limited items of information relating to the non-resident patients (‘the specified limited information’) were transmitted by the NHS trusts and the NHS foundation trusts (‘the NHS bodies’), who provided the relevant medical services. This information was sent to the Secretary of State for Health (‘the Secretary of State’), who then passed them on to the Home Office, which then ‘normally’ imposed the relevant immigration sanction. The content of the specified limited information was said to be less intrusive than the information that NHS bodies normally passed to the debt collection agencies that they used.
The Claimants were persons who were either charged under the above regime or made liable or potentially liable to being charged. Their counsel, Mr David Wolfe QC, sought declaratory relief that the regime was flawed on the following grounds: –
a) The NHS bodies had no power to pass on the information to the Secretary of State, or for him then to pass it on to the Home Office for a number of reasons, including the confidential nature of this information (‘The Vires Issue’); and
b) Even if there was such a power, the Guidance issued by the Secretary of State in the ‘Guidance implementing the Overseas Visitors Hospital Charging Regulations’ (‘the Guidance’) was unlawful because it purported to require the NHS bodies to share data whereas the NHS bodies should have had a discretion whether or not to do so (‘the Fetter Issue’).
I. The Vires Issue
The Court held that the regime for the transmission of the specified information was ‘calculated to facilitate’ or was ‘incidental to’ or was ‘conducive to’ the Secretary of State’s function under section 1 of the National Health Service Act 2006 (‘the NHSA 2006’) as it led to the greater recovery of funds and the availability of more funds to enable the Secretary of State to comply with its duties under that provision. These duties were to continue the promotion in England of a comprehensive health service that was designed to secure improvement in the physical and mental health of the people of England.
Mr Wolfe’s submission that such a conclusion was inconsistent with the decisions in McCarthy and Stone and in Hazell was rejected. In those fact-sensitive cases, the local authorities did not have duties similar to the NHSA 2006 section 1 duties imposed on the Secretary of State in the immediate case. Mr. Wolfe relied upon the above cases when submitting that the Defendants did not identify the relevant function on which the NHS bodies were relying in order to justify the transmission of information. However the Court held that the transmission of data was clearly ‘expedient’ (if not ‘necessary’) in connection with the NHS bodies’ functions of imposing and recovering charges under Regulation 3 of the Charging Regulations. The data was transmitted so as to allow the immigration sanctions to be applied effectively, while the purpose of the immigration sanctions was to ‘allow better recovery of NHS debts’, as was expressly stated in paragraph 1 of Appendix 7 to the Guidance. This increased the funds available to the NHS, which was the purpose of imposing the immigration sanctions regime.
Mr Wolfe also disputed that the common law powers relied on by the Defendants gave the Secretary of State the power to transmit material to the Home Office. Mr Wolfe drew upon the decision in Shrewsbury & Altrincham BC v Secretary of State for Communities and Local Government , where Carnwath J explained in relation to the Crown’s common law powers that: ‘as an organ of government, it [could have] only exercise[d] those powers for the public benefit and for identifiably “governmental” purposes within limits set by the law’. However this reservation was rejected by Richards LJ in the same case:
‘I think it unnecessary and unwise to introduce qualifications along the lines of those suggested by Carnwath LJ at para 48, to the effect that they can only be exercised “for the public benefit” or for “identifiably ‘governmental’ purposes”. It seems to me that any limiting principle would have to be so wide as to be of no practical utility or would risk imposing an artificial and inappropriate restriction upon the work of government’
Further, the Court held that even if Carnwath J’s approach was accepted, the Secretary of State still had sufficient powers to transmit the information as it was already clearly established that it was for ‘identifiable governmental purposes within limits set by the law’. The Defendants contrasted the data-sharing in this case with that in ex parte C, where the data was very sensitive, revealing not only criminal convictions but also information communicated by employers when the individual left his or her employment in cases in which the welfare of children may have been put at risk. Unlike in the present case, the information in ex parte C was disclosed to non-governmental bodies and, in particular, to prospective employers.
It was therefore held that the Secretary of State had both the statutory and common law functions providing vires to transmit this information. The Court found that there was power first for the NHS bodies to send the specified information to the Secretary of State, and then for him to transmit the specified information on to the Home Office.
II. The Fettering Issue
The Court was unable to accept the Claimant’s contentions that firstly the NHS bodies and then the Secretary of State had mere powers to transmit the specified limited information; secondly, that they did not have a duty to do so and thirdly, that the Guidance was misleading and therefore wrongful in so far as it stated that the NHS bodies did have a duty to transmit this information. These contentions were rejected for the following reasons.
Firstly, the Secretary of State had a statutory right to obtain information from the NHS bodies. This was because the NHS trusts had statutory powers to transmit the specified limited information if it was ‘necessary or expedient for the purposes of or in connection with its functions’. The transmission was clearly necessary or expedient given that the NHS bodies’ obligations were to:
a) ‘make and recover charges where it provide[d] an overseas visitor with medical services’ (regulation 3(1) of the Charging Regulations);
b) comply with duties in the Guidance to transmit the specified limited information to the Department of Health. This was because there was a statutory duty imposed by paragraph 13 of Schedule 4 of the NHSA 2006 on the part of NHS trusts to have ‘furnish[ed] to the Secretary of State such reports, returns and other information…and in such form as he may [have] require[d]’. Similarly, section 48(1) of the NHSA 2006 required foundation trusts to have ‘provide[d] the Secretary of State with such information as the Secretary of State consider[ed] it necessary to have for the purposes of the Secretary of State in relation to the Health Service’.
Secondly, the Court held that even if the Secretary of State lacked the above statutory right, the mechanics of the data sharing and immigration sanctions meant that there should not have been discretion on the part of NHS bodies not to transmit the specified limited information because such discretion would have undermined the statutory purpose of the immigration sanction regime.