Do Foundation Trusts have the statutory power to make “pocket money” payments to in-patients?

In R (Mitocariu and another) v Central and North West London NHS Foundation Trust, the court considered the powers of NHS Foundation Trusts under the National Health Service Act 2006 to offer financial assistance to patients while they are detained under the Mental Health Act 1983 (MHA).

This case raises a number of questions about whether a Foundation Trust has the power or duty to fund occasional expenses where a patient receiving mental health care is unable to do so.

The claimants were Romanian nationals detained under various sections of the MHA (firstly sections 48 and 49 and then sections 37/41 and 36 respectively). They requested payment of “pocket money” to assist them while they were being detained. They asserted that there was power to make regular, standard payments to every in-patient who was not in receipts of benefits irrespective of need or the judgment of clinicians.

The claimants’ relied on section 122 MHA but it was found that their request was “misplaced” as the Secretary of State’s power to make payments was abolished by section 41 of the Health and Social Care Act 2012. However as there was common ground that both non-regular and regular payments had been made in the past permission was given for the judicial review to proceed.

The issues for discussion

• Did the NHS Foundation Trust have power to make payments to the claimants;
• What was the scope and nature of the power, if any, held by the NHS Foundation Trust to make payments;
• Did the NHS Foundation Trust lawfully exercise the power;
• Did the absence of a policy mean the NHS Foundation Trust acted unlawfully;
• Was the NHS Foundation Trust under a duty to make regular payments to the claimants in the amounts claimed or any amounts.

Conclusion

The court concluded that Foundation Trusts do have the power to make “pocket money payments” to in-patients – this power arises under sections 43, 46 and 47 of the 2006 Act but that power only arises and can only be exercised for and in connection with functions identified under section 43 of the 2006 Act.   

It also noted that the discretion of a Foundation Trust to make payments is limited to that which is commensurate with the therapeutic treatment being provided. The court confirmed that there was no entitlement to payment, nor a duty to make payment.

The court outlined that 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.