Judge rejects challenge over council’s alcohol detox policy

In January 2021, the claimant had an alcohol withdrawal seizure and was taken by ambulance to the Royal Surrey County Hospital ("RSCH"). Clinical notes recorded a nurse saying that the claimant was "unlikely to be eligible for community detox services as [there was] no prior engagement to do abstinence preparation" and that because he was physically dependent on alcohol he should aim for "reduction of alcohol use rather than abrupt cessation".

The nurse recorded that she had made a referral to "i-access", a drug and alcohol service provided by Surrey and Borders Partnership NHS Foundation Trust ("SaBP") on behalf of Surrey County Council ("the Council")”.

I-access attempted to contact the claimant by letter and text message on 19 January 2021, and by telephone on 4 February 2021. The letter offered "a Telephone Assessment in the first instance" and gave a number to call to arrange such an assessment, said the High Court judge.

The claimant did not respond to the letter or text. On 17 February 2021, i-access sent the claimant a letter, copied to his GP, saying that they were closing his file, but he should not hesitate to contact them if he required support in the future.

In April 2021, the Claimant’s mother was very concerned about him and telephoned i-access. The mother said that they “refused to provide treatment unless he first undertook an alcohol reduction programme, but it was not safe for him to undertake that programme”.

The mother arranged for her son to be admitted as an in-patient to a private facility, to receive medically assisted alcohol detoxification ("detox") treatment. The cost of the treatment was £19,650, which was paid with the assistance of a loan from the claimant's father, said the High Court Judge.

After 15 days, the treatment was successful, and the claimant has been sober ever since.

In November 2021, his mother asked Surrey to reimburse the cost of the treatment. However, on 23 December 2021, the council refused.

Mr Munro, the Council's Senior Public Health Lead said in an email: "Assessment appointments were offered by both telephone and then in person as per the referral process. These were both refused by your son and you on his behalf. Signposting to primary care and urgent and emergency care were also made regarding the health needs your son was displaying at that time.

“In the circumstances, we do not agree that your son was refused access to treatment and we are not responsible for any costs payable to the private substance misuse treatment provider for your son's treatment."

The judge in the case (F v Surrey County Council [2023] EWHC 980 (Admin)) Mr Justice Chamberlain said: “The claimant challenges what he describes as the Council's "blanket policy" not to offer residential detox to patients who have not undertaken an alcohol reduction programme and the refusal to reimburse.”

The original grounds of challenge were that the Council:
1) operates an inflexible and/or irrational unpublished policy;
2) failed to publish the policy;
3) acted procedurally unfairly; and
4) breached the claimant's rights under Article 14 ECHR read with Article 8.

The relief claimed was a quashing order of the refusal to reimburse of 23 December 2021 and damages for breach of Convention rights.

Ground 3 was abandoned before the oral permission hearing on 3 November 2022. At the hearing, Mr Justice Chamberlain granted permission to apply for judicial review on grounds 1 and 4, but refused permission on ground 2.

The Claimant’s ground 1 (as amended) is that, before his admission to the private facility, the council applied an “inflexible and/or irrational unpublished policy which does not require or enable each request for treatment to be considered on its merits” (ground 1.1); as applied in this case, “did not involve a genuine consideration of the individual merits” (ground 1.2); and was “unlawful because it was not disclosed” (ground 1.3).

For the claimant, Graínne Mellon of Watkins Solicitors submitted that “the Operational Policy, on its true construction, does not "genuinely recognise" the possibility of residential detox without undertaking an alcohol reduction programme.

“On a plain reading of the policy, a patient can, exceptionally, be referred for in-patient detox if he has not "completed" the APG, but not if he has not started it; he must be in "active treatment" with i-access,” she said. Ms Mellon further submitted that the application of an unpublished Operational Policy “was itself unlawful”.

Katherine Eddy, representing the defendant, submitted that the Council does not have an inflexible, mandatory rule that it will only fund residential detox if a person has first completed an alcohol reduction programme.

“In any event, the claimant's challenge also fails on the law. Even if unlawful past conduct may in some circumstances constitute a material consideration in the exercise of a later discretion, it does not follow that the Council was bound to have regard to its own past unlawfulness on the facts of this case, especially where the past unlawfulness had not been established at the time of the challenged decision.”

Considering ground 1, Mr Justice Chamberlain said: “The first question is therefore whether the Operational Policy does indeed permit residential detox without first undertaking an alcohol reduction programme.”

Mr Justice Chamberlain concluded that “the Operational Policy, as applied in practice, did allow i-access exceptionally to refer patients for detox treatment without having engaged in an alcohol reduction programme”.

Later, he turned to the issue of whether the court needs to decide what was said to the claimant's mother on the telephone. He said: “If, as the claimant says, i-access refused to assess him other than with a view to his participation in an alcohol reduction programme, that refusal must have been communicated on or before 21 April 2021.

“As I have noted, the Claim Form does not challenge any such refusal. It challenges a decision taken on 23 December 2021. That was a decision to refuse reimbursement. In taking the decision, Mr Munro had to decide a question of primary fact: was the claimant refused access to treatment because his clinical presentation made him unsuitable for an alcohol reduction programme?”

Considering whether, in deciding that question, Mr Munro made “any justiciable public law error”. Mr Justice Chamberlain said: “In my view, he did not. He knew something of the background to the case because he himself had spoken to the claimant's mother on 21 April 2021. He made enquiries of Ms Matthews, who explained the approach that i-access took and (in brief) what had happened in this case in an email on 22 April 2021 and in a telephone call later that day.”

He added: “Mr Munro's reasons were, in essence, that "assessment appointments" had been offered, and that these had been ‘refused by your son and you on his behalf’. This was true.”

Concluding, the High Court judge said he saw “no justiciable public law error in refusing the request for reimbursement”.

Later, he added that even if it were necessary to consider as a matter of fact what the claimant's mother was told, when he refused the claimant's mother's application for reimbursement, “Mr Munro did not act unlawfully by failing to take into account the unlawful refusal of treatment, because I am unable to make a positive finding that there was such a refusal”. Mr Justice Chamberlain concluded that grounds 1.1 and 1.2 fail.

Turning to Ground 4, the High Court Judge said: “The claimant accepts that ground 4 is contingent on establishing that the Council adopted an inflexible policy or practice under which it closed its mind to the possibility of funding an immediate detox for the claimant without having first completed alcohol reduction work. Since I have not accepted the premise, this ground falls away.”

Concluding the judgment, Mr Justice Chamberlain said that the application to amend will be dismissed and the claim will also be dismissed.

Lottie Winson