Clinical negligence and judicial review aren’t areas of the law which most would think of as overlapping.  But given recent changes in policy, it’s increasingly likely that claimants will need solicitors with knowledge of both.

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What Is Judicial Review?

In essence, judicial review is the process by which ordinary people can challenge government decisions – ranging from local authority decisions affecting a single street to those decisions taken by major ministries which affect the entire country.  Unlike our continental cousins, in England and Wales we do not have a set system of Courts for challenging public decisions, so a prospective claimant needs to apply to the High Court for permission.  To get permission, three criteria must be met:

  1. Is the application prompt?  An application needs to be made within three months of the decisions being challenged.
  2. Does the person making the application have sufficient interest – locus standi in legal jargon – to make the application?  In other words, is the person making the application affected by the decision?  Would-be good Samaritans can’t make applications if the matter at hand doesn’t concern them.
  3. Does the matter relate to public law?  This is the tricky part – whereas a clinical negligence claim concerns itself more with the standard of care by individual medical practitioners, a judicial review application will normally concern itself more with policies – for example, whether a policy was followed, and whether following that policy produced a sensible result.  The focus in judicial review is on how a decision was made, rather than its merits.

There is scope for a significant overlap in point (3) between judicial review and negligence actions – an allegedly negligent surgeon might defend a claim by saying that he was following the policy of the hospital he works for in how he treated a patient, for example – but a key thing to understand is that a judicial review application can only be made against a public body.  An NHS trust might find itself on the receiving end of both a judicial review application and a clinical negligence action, but a private medical provider could only be sued for clinical negligence.

Once an application has been granted, there are three grounds upon which a judicial review application might be founded – illegality, irrationality and procedural impropriety.

Illegality covers a number of situations – such as where a public body has made an error of law or fact, has used powers granted to it for a different purpose than they were intended, or where it has “fettered its discretion” – unnecessarily decided it would only make a decision in a very particular set of circumstances.

Irrationality does what it says on the tin; it has been defined in the past as any decision, “So outrageous in its defiance of logic or of accepted moral standard that no sensible person who applied his mind to the question could have arrived at it.”

Procedural Impropriety doesn’t just cover the simple question of whether procedures weren’t followed; it also covers situations where “natural justice” hasn’t been applied – in short, common-sense notions of what is fair – was a decision biased, for example.

If an application to the High Court is granted, and the grounds are accepted by the Court, a number of things might happen – the public body’s decision might be nullified; the public body might be ordered by the Court to carry out its duties if it isn’t doing them, or to stop doing something it is doing.  In certain circumstances, the Court might even award damages – but this would only be the case if the facts of the matter also included an action of the sort in which damages would normally be awarded;  for Clinical negligence, for example.

So how does this apply to me?

It turns out that the Prime Minister is not a big fan of judicial review – back in November, there was talk from him in a speech to the Confederation of British Industry of a clampdown on judicial review in immigration and environment cases, citing the fact that there are far more applications made than are accepted by the High Court.  The Law Society’s counter-argument was that this is a sign that the system is working: people might be making applications, but they aren’t getting past that first stage.  Whether anything will come of this remains to be seen.

What can be said with a reasonable degree of certainty, however, is that another government policy – the restructuring of the NHS – is likely to bring about a greater need for judicial review procedures for a number reasons – chiefly, the number of layers of management between the Secretary of State for Health and hospitals, GPs and other direct care providers will change from two (10 Strategic Health Authorities and 151 Primary Care Trusts) to four (the National Board, 4 local hubs, 50 local offices of the National Board and 240 clinical commissioning groups).  That doesn’t even take into account the management at hospitals, GP’s surgeries and so on themselves.  Obviously, there will be a lengthy period in which a good chunk of the people in the NHS don’t know what decisions they’re allowed to make, or how to make them (not least because doctors are now going to be required to be managers) – prime fodder for judicial review applications.

The danger is that this procedural uncertainty will filter down into the NHS’s clinical results; there are already a significant number of judicial review applications in relation to mental health care, and there is an unwholesome prospect of this becoming the case in all areas of clinical practice.  Further, with added demands on doctors’ time to manage, will this have a negative impact on their ability to provide healthcare of an appropriate standard?

Reports of poor referral statistics, instances of misdiagnosis and poor care of the elderly are already rife; so one can only imagine how much worse this may become once the restructuring takes place.

What Can I do?

In short, the procedural goings-on of the NHS should not affect you or the care you receive. So if you feel that you have received care which wasn’t of an acceptable standard – for whatever reason – it is essential you speak to a qualified solicitor immediately.

If you’d like to find out more about Asons Solicitors, their new medical negligence department, or about their career opportunities; you can visit them at www.asons.co.uk, or you can contact them directly on 0844 850 1062.

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2 Comments

  1. Shibley says:

    Excellent article. Public law and access-to-justice are crucial for society.

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