David Owens on judicial reviews in Health Service litigation

The past year has seen significant growth in a new area of litigation for Health Service bodies. In addition to the burdens of allegations of clinical negligence and the consequential litigation, there are a number of new types of challenge being brought by way of judicial review.

One aspect of this has been the rising tide of challenges to purchasing decisions and policies. While the courts have generally been unwilling to second-guess the Health Authorities over the allocation of the limited resources available to them even in the child B case, the new approach has been to attack what are seen as unduly restrictive policies, or their application in specific cases.

This is particularly the case in actions that are seeking to open up to debate what are in effect rationing decisions by Health Authorities, which are increasingly adopting a list of treatments, such as gender reassignment surgery, that are not normally funded.

Clearly the basis for drawing up such a list and, more importantly, the rigidity or otherwise of the policy are matters where the courts may be able to intervene.

This cross-over between the responsibilities of a local authority and the NHS also arises on the discharge of a patient. Both an NHS trust and a local authority have obligations, particularly if an individual will require some level of ongoing care, to co-operate over the arrangements.

In this type of case, challenges have mainly been made against local authorities. They allege failure to comply with an obligation to make an adequate assessment of an individual's need and to make a service provision decision.

In some cases, however, NHS trusts have been brought into court with criticism of the way they have approached a discharge and the extent to which they have complied with their duties to cooperate with a local authority.

However, this area illustrates the potential difficulties which can flow from the use of judicial reviews in the Health Service.

In virtually all successful cases the effect will be to quash an existing decision or policy, but not to impose a solution on the parties.

Whether these decisions or indeed the revamped NHS complaints procedures will succeed in turning dissatisfied patients and their relatives away from judicial reviews we can only wait and see.

David Owens is a partner at Bevan Ashford.