In R (Legal Remedy UK Ltd) v Secretary of State for Health  EWHC the Claimants, a pressure group of junior doctors, challenged a decision taken by the Secretary of State for Health intended to resolve serious difficulties arising from a new centralised web-based application system for doctors wishing to become specialists. The Claimants objected both to the manner in which the decision had been taken, complaining specifically of a lack of consultation, and the substance of the decision, which they said was conspicuously unfair. Goldring J held that he was not equipped to decide policy issues which required expertise on the practicalities of recruiting and training doctors. He found that the proposed solution, though not ideal, was within the range of reasonable responses that could have been made in the circumstances. The case is a good illustration of the exercise of judicial restraint in challenges to policy decisions.
The new applications system was part of a government initiative called "Modernising Medical Careers" ("MMC") which was aimed at reforming postgraduate medical training. Applications for specialist training were to be made through a new web-based system, the Medical Training Application Service ("MTAS"). Under MTAS, applicants could use a single electronic application to apply for up to 4 specialty training positions. Under the previous arrangements, candidates had been obliged to make sometimes numerous different applications to different bodies.
There was no pilot for the scheme and it became clear very soon after the first round of applications had been made and interviewing had commenced, that there were serious problems associated with the way in which candidates had been selected for interview. The Secretary of State appointed a group, comprised of several highly qualified medical experts, to review the application scheme.
The review group found that there were shortcomings in the system and a series of proposals were made as to how the problems should be resolved, culminating in an official statement setting out the final proposal. In summary, the proposal was that the new system would not be abandoned entirely but would be modified. Offers already made to candidates would be honoured. All of the other candidates would be guaranteed at least one interview for their first preference. Announcing the decision, the review group stated that serious consideration had been given to all available options, including withdrawal from the new system entirely. However, this was "simply not a credible option" having regard to the need to place the best candidates in post and ensure continuity of patient care. The review group concluded that it had come up with the best possible solution for England.
Although the challenge was based partly on alleged abuse of power/breach of legitimate expectation, this was no ordinary legitimate expectation case because the Claimants were not seeking the usual relief sought in such cases – namely that the originally proposed course of action should be adopted (in this case, this would have meant proceeding with MTAS as it was originally introduced). Instead, the Claimants argued that the decision to adopt the modified system was conspicuously unfair in a number of respects and that this unfairness was aggravated by the breach of the junior doctors' legitimate expectation that candidates would be considered for four expressed preferences. They also argued that the decision was unfair because it had not been preceded by fair and adequate consultation. The unfairness, it was argued, was such that the decision amounted to an abuse of power and was unlawful. They sought a quashing order and a declaration to the effect that the decision was unfair and required remedy by the Defendant – 2 alternative forms of relief were proposed.
Goldring J identified the crucial issue as being whether, having regard to the deficiencies apparent to the review body and in all the circumstances facing it at the time, the modified application scheme was a possible rational solution and not conspicuously unfair. In considering that issue, he noted that he "must beware "donning the garb of policy-maker."" He approached the matter on the basis that a decision is less likely to amount to an abuse of power where it relates to policy and involves balancing issues which the court is ill-equipped to judge. He found that this was just such a decision, noting the expertise of the review group and the fact that "policy and practical decisions about the recruitment of junior doctors is far removed from the normal sphere of the court's expertise." On that basis, he concluded that a less intrusive standard of review was called for and that he was not equipped to decide what he described as "issues of policy requiring expertise on the running of the NHS and the training of doctors." He found that he could not therefore quash the decision or declare it to be conspicuously unfair.
As to consultation, the Claimants argued that the appointment of the review group did not constitute sufficient consultation on the decision to modify MTAS. Specifically, they argued that the interests of affected doctors were not sufficiently represented, given that it was their expectations that would be reversed. Goldring J found that there had been no breach of any duty to consult, relying on the recent decision in R (Greenpeace) v Secretary of State for Trade and Industry  EWHC 311 in which it was held that to find a consultation unlawful on the ground of unfairness, the court must find "not merely that something went wrong, but that something went clearly and radically wrong". In this case, that threshold was not met – in the urgent and difficult situation faced by the Secretary of State at the time, she had been entitled to consult in the way that she did.
The case demonstrates the limits of the extent to which the courts are prepared to interfere in policy decisions, although Goldring J was clear that this was an unprecedented case so far as the law is concerned. He appears to have been influenced by the fact that the quashing of the Minister's decision would have affected between 18,000 and 23,000 people, of whom a significant number may well have wanted it to stand. Although he acknowledged that the decision was "far from ideal", he found that it was within the range of reasonable responses to the very difficult situation faced by the review group. He also expressed the view that even if the legal grounds of challenge had succeeded, this may have been a case in which the court could have exercised its discretion under section 31(6) Supreme Court Act to refuse relief in any event, on the basis that it would have caused detriment to good administration.