Medical Law

WEEK 3 - INTRODUCTION TO JUDICIAL REVIEW

RACHEL HORTON
- Substantive v Procedural Justice

- R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129

 ‘Difficult and agonising judgments have to be made as to how a limited budget is
best allocated to the maximum advantage of the maximum of patients. That is
not a judgment which the court can make.’
Implicit to Explicit Rationing

‘Accountability for Reasonableness’ (N Daniels and J Sabin Setting Limits Fairly – Can We Learn to
Share Medical Resources? (2000) (OUP, Oxford)

• - Publicity

• - Relevance

• - Revision and Appeal

• - Enforcement
Remedies for Judicial Review

- Declaration

- Mandatory Order

- Prohibiting Order

- Quashing Order
Grounds for Judicial Review

- Illegality

‘The decision maker must understand correctly the law that regulates his decision making
power and must give effect to it.’ (Lord Diplock in Council of Civil Service Unions v Minister for the Civil
Service [1985] AC 374)

- Irrationality

“Rationality has two faces: one is the barely known decision which defies comprehension;
the other is a decision which can be seen to have proceeded by flawed logic” (ex p
Coughlan)

- Procedural Impropriety
The National Health Service Act 2006

(1) The Secretary of State must continue the promotion in England of a

comprehensive health service designed to secure improvement — (a) in the
physical and mental health of the people of England, and (b) in the prevention,
diagnosis and treatment of physical and mental illness.
R v North and East Devon Health Authority ex parte Coughlan [2000] 3 All ER 850
‘…a comprehensive health service may never, for human financial and other resource
reasons, be achievable…In exercising his judgment the Secretary of State is entitled
to take into account the resources available to him and the demands on those
services.’ (at 861)
Other relevant legal obligations
include…

- The National Institute for Health and Care Excellence (Constitution and Functions) and the Health and
Social Care Information Centre (Functions) Regulations 2013

Regulation 7:

(1) NICE may make a technology appraisal recommendation — (b) that recommends that
relevant health bodies provide funding within a specified period to ensure that the health technology be
made available for the purposes of treatment of patients… [and]

(6) A relevant health body must comply with a technology appraisal recommendation.

-
https://www.nice.org.uk/about/what-we-do/our-programmes/nice-guidance/nice-technology-appraisal-guid
ance/technology-appraisal-static-list

- The Equality Act 2010

Irrationality

- Taking irrelevant reasons into account; or

- Failing to take relevant reasons into account.

In particular:

- relevance of medical evidence (including NICE guidance)

- making exceptions (Individual Funding Requests)

Status of NICE guidance
Rose v Thanet CCG [2014]

“The Defendant has no compliance obligation as such [with NICE guidelines], but the
issue in the instant case is whether CCGs may legitimately disagree with NICE on
matters concerning the current state of medical science... In my judgment the
Defendant could have found other reasons for not following the NICE
recommendation, but not this one.

… the CCG has failed to advance clear, lawful reasons for departing from the relevant
NICE recommendation… the CCG could not lawfully disagree with the medical or
scientific rationale for NICE’s recommendation in relation to oocyte
cryopreservation, but I am not ruling out the possibility that other reasons of a
different nature could not lawfully be relied on”
Making Exceptions

- Many cases arise after an Individual Funding Request has been refused

R v NW Lancashire HA v A, D & G (2000)

- importance of process for considering individual circumstances

“...a policy to place transsexualism low in an order of priorities of illnesses for

treatment and to deny it treatment save exceptional circumstances such as overriding
clinical need is not in principle irrational, provided that the policy genuinely
recognises the possibility of there being an overriding clinical need and requires each
request for treatment to be considered on its individual merits.”
Making exceptions

R (Ann Marie Rogers) v Swindon Primary Care Trust and the Secretary of State [2006]

- a policy which states that an intervention will only be funded in exceptional circumstances will only
be lawful if the policy maker can envisage what kind of cases would be exceptional

‘withholding assistance save in exceptional circumstances…will be rational in the legal sense

provided that it is possible to envisage, and the decision maker does envisage, what such exceptional
circumstances might be.’

‘The essential question is whether the policy was rational; and, in deciding whether it is rational or
not, the court must consider whether there are any relevant exceptional circumstances which could
justify the PCT refusing treatment to one woman within the eligible group but granting it to another.’

R (Ross) v West Sussex Primary Care Trust [2008]

- exceptionality review process unlawful where it requires claimant to show they are ‘unique’
Making exceptions – clinical factors v
social/personal factors

SB v NHS England [2017]

“The prevalence of a Kuvan responsive child with PKU who is as severely affected by autism as S
was of 0.03 per million population: a total of 1 or 2 individuals in the whole of the UK, including S…
[T]he severity of S's autism and its impact on his ability to comply with the dietary regime does
make him exceptional to the cohort.”

Otley v Barking and Dagenham PCT [2007]

“Her reactions to other treatment, in particular to Irinotecan plus 5FU had been adverse. Her
specific clinical history suggested that her reaction to a combination of chemotherapy and Avastin
had been of benefit to her. By comparison with other patients, she, unlike many of those the
subject of the studies, had suffered no significant side‑effects from a cocktail which included
Avastin.”
Making exceptions – clinical factors v
social/personal factors

AC v Berkshire West PCT [2010]

“If the Claimant were to be awarded funding and a natal woman with moderate
symptoms were not, the PCT would be open to the obvious charge that it was
discriminating against the natal woman by treating like cases differently”

R (on app Longstaff) v Newcastle NHS PCT (2004)

R (Condliff) v North Staffordshire PCT [2011]