We have noticed a sharp rise in Judicial Review (JR) claims over the past 2 years in healthcare law. This may come from increased activism in the healthcare sector, with Claimants looking at new ways to bring claims or perhaps from a perception of closer state control over the past 20 years, giving Claimants more opportunities to instigate such claims. It is important that NHS organisations are alive to the possibility of more JR claims and that they are prepared to act very quickly when faced with them.

What is Judicial Review?

JR is a legal procedure to challenge the lawfulness of decisions made by Ministers, Government Departments and, for the purposes of this article, other public bodies, such as NHS Trusts. Courts determining JR cases will not be concerned with whether a Trust made the ‘right’ decision but whether it acted lawfully. A Claimant is broadly seen as the individual affected by the decision made.

Actions of NHS Trusts that might lead to JRs are extremely diverse. They can include decisions over the treatment of patients (perhaps where a patient’s immigration status is in doubt); decisions to detain or discharge mental health patients; decisions not to investigate a complaint/adverse incident; carrying out an investigation wrongly; and acting in a way that is incompatible with Convention Rights (i.e. a Human Rights abuse). They can also extend to employment decisions, health and safety decisions and procurement of services.

Human Rights Act Judicial Reviews

We have noticed an increase in ‘Human Rights Act’ JR claims. Claimants or their relatives are increasingly claiming breaches of ‘Convention Rights’, such as the right to life (Art.2). When a patient dies at an NHS hospital, a Coroner may well hold a much fuller inquest, looking at the Deceased’s treatment far more comprehensively than they previously had done. That will be the case, particularly with detained mental health patients who are under Trust (or State) control, as the Human Rights Act places a positive obligation on Trusts, as State bodies, to protect life and therefore prevent patients from harming themselves. A full Inquest can examine that.

The debate gets blurred when considering informal mental health patients arguably not under “State control”. In a JR case we are dealing with at the moment, the question posed is whether the Trust was under an obligation to carry out a comprehensive “Art. 2” SUI (serious untoward incident) investigation after an informal patient apparently attempted suicide, following a self discharge. It is claimed the investigation should have considered not only the immediate circumstances surrounding the incident but the patient’s treatment as a whole, going back months or even years. The Court is asked to consider whether such SUI investigations should include public hearings, akin to inquests, and publication of reports at the conclusion. This would place a huge burden on the NHS if such investigations are required each time incidents such as that occurred. The Trust is challenging the claim.

Tips and Tactics for early resolution before the Courts get involved

Each JR turns on its particular facts but the responses to them have common themes to be followed to ensure cost effective and swift resolution.

Letter before Claim

  • JRs move very quickly. Claimants must bring claims within 3 months of the decision being challenged. They should send a Letter before Claim first, which sets out their intention to bring a formal JR claim, detailing the issues in dispute and seeking ways to avoid litigation.

Letter of Response

  • The Letter of Response must be served within 14 days of the Letter before Claim, which gives very little time.
  • It is very important when defending Judicial Review proceedings to start on the ‘front foot’ with a solid pre-action response. Everything that is drafted in response to a JR claim must be done with one eye on the Court. If pre-action responses do not dispose of the claim, the Court will scrutinise what parties did before the claim was issued at the Court to try to avoid a full JR hearing. Therefore, be prepared to put forward your strongest Defence from the start and, where necessary, make good proposals for resolution very early. We would advise seeking Legal Advice before responding as a strong early response may save significant costs in the long term.
  • As soon as a Letter before Claim is received, the Trust will need to immediately investigate the decision being challenged, to ascertain whether or not it was lawful. Similarly, where a Human Rights Act JR claim is made, the Trust will need to look into the complaint to establish how valid it might be.
  • Statements should be taken from any individuals involved in the decision being challenged and, with Human Rights Act claims, all relevant treating clinicians should be asked to comment.
  • Depending on the scale of the enquiry, it is sometimes sensible to set up an early conference with as many ‘stakeholders’ as possible so that any response made is done so in unison. For example, if the decision being challenged may have wider implications for the NHS, consider involving the SHA and perhaps the Department of Health. These stakeholders may need to be joined into the proceedings or asked to take them over. All should work together in responding to the Claimant and, if possible, share the costs.
  • The Letter of Response must address the circumstances leading up to incident or decision in as much detail as possible. Given the short timescale available, it is possible some issues may need to be clarified at a later date.
  • The Response must answer each allegation in the Letter before Claim in as much detail as possible, giving reasons for each response.
  • It is important to look for ways to avoid litigation and a Court will look kindly on any party that does this. JR is as a remedy of last resort and parties are expected to have exhausted all alternative remedies first. For JR’s in healthcare disputes, it may be more appropriate for the Claimant to make an initial complaint to the Health Service Ombudsman; or the matter may be better dealt with in the civil courts. These options should be set out in the Letter of Response.
  • Similarly, you may wish to offer the Claimant early neutral evaluation by an independent third party (e.g. a lawyer experienced in administrative and healthcare law) in the Letter of Response.
  • Where it is appropriate to concede some or all issues, these concessions should be made as early as possible, to avoid the costs of litigation. If concessions are made, an offer should be made to resolve the matter – e.g. reviewing the decision made, re-doing an investigation, or instructing an independent investigator. If the Claimant does not then accept the offer, a Court should be made aware of that rejection and why the Trust considers the Claimant is being unreasonable. This will help the Trust when dealing with the JR costs.

Claim Form and Acknowledgement of Service

  • Where the pre-action stage fails to resolve the matter, the Claimant will need to lodge a Claim Form within 3 months of the relevant decision.
  • When served, the Defendant will have 21 days to file an Acknowledgement of Service, which is a document that sets out the grounds for contesting the claim.
  • Again this is a very short timescale and it is therefore very important Trusts move quickly.
  • Both parties will need to submit their Grounds for making/resisting the claim. All must be as open with each other and the Court as possible.
  • The Court will then consider whether to grant permission to hear the case and, if the Trust’s Letter of Response and Grounds of Resistance were strong enough, the Court may dismiss the claim at that stage. If not, a full hearing will be listed.

The JR process can be very expensive for Trusts and it is therefore very important to limit those costs as much as possible by providing full and frank responses as early as possible. Where appropriate, the Trust should resolve the dispute with the Claimant to avoid expensive proceedings. Resolution may mean the Trust agrees to review its decision or perhaps carries out a fuller investigation. Where the JR claim is unfounded, Trusts should robustly defend it, to avoid the floodgates opening and similar claims falling through.

Many of the claims are better resolved by other means, such as through the internal complaints procedure, the Ombudsman, the Civil Courts or the Coroner’s Court. These options should always be suggested to Claimants at the outset to encourage that all important early resolution.