R (BA) v Secretary of State for Health and Social Care

The Court of Appeal upheld Directions given by the Secretary of State which require transplant organs to be allocated first to those lawfully in the country. 

The original judicial review application was brought by A who suffers from end-stage kidney disease and is HIV positive.  A was also at the time an illegal immigrant to the UK who had exhausted all his appeal rights.  Under the challenged system (contained in Directions issued and revised from 2005), candidates for transplantation are placed in one of two categories: group 1 contains those ordinarily resident in the UK; and group 2 contains all others.  It was accepted on both sides that ordinarily resident means lawfully resident and, if the Directions were valid, A therefore belonged in group 2 (with a very small chance of ever being allocated a kidney). Since the original application was issued, A has been granted leave to remain and hence has been transferred to group 1.  However, the Court accepted that the case raised a point of general public importance and should proceed.

A argued that the Directions were in ultra vires s. 1 of the National Health Service Act 2006 (“2006 Act”) (and its predecessors) which imposes a duty on the Secretary of State to continue the promotion of a comprehensive health service designed to secure improvement in the physical health of “the people of England”.  The superficially attractive argument that “people of England” means people lawfully in England was not available to the Secretary of State because of the provisions in the 2006 Act which permit charges to be imposed on those who are not ordinarily resident in the UK (but therefore are entitled to treatment). 

A argued that the Directions were an unlawful departure from the principle which underlies the whole 2006 Act: that NHS resources are allocated on the basis of clinical need. The Court of Appeal accepted that s. 1 of the 2006 Act (and its predecessors) when properly read imposes only a target duty and the Secretary of State was entitled to distinguish between those lawfully and unlawfully in the country in relation to this uniquely limited resource.  

Ivan Hare QC appeared for the Secretary of State.