Administrative Court offers guidance on challenges to decisions

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In the current climate both commissioners and providers are, more than ever, grappling with the need for service change. Unfortunately getting patient and public involvement (whether that be by way of engagement or consultation) wrong means that a legal challenge, by way of a Judicial Review, could beckon with consequent delays, legal fees and reputational damage.

When the topic of consultation arises it is often CCGs that come into sharp focus. However, as Providers you too have a statutory duty in this context as set out in s242 NHS Act 2006.

Just last month the Administrative Division of the High Court reviewed over 13 years of case law and set out the approach of the courts to a challenge to a decision as follows:

  • The decision maker has to balance the interests of several different groups, not simply those represented before the Court
  • The decision maker may be in a better position to do this effectively and in such a way as to prevent the interests of one particular group receiving inappropriate precedence over the interests of other groups
  • With the benefit of hindsight, it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test
  • It must also be recognised that a decision maker will usually have a broad discretion as to how the consultation should be carried out
  • Where a statute conferring discretionary power provides no lexicon of matters to be treated as relevant by the decision maker then it is for the decision maker and not the court to conclude what is relevant, subject only to Wednesbury review
  • It is for the decision maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such

The High Court went on to say that a Court will only quash a decision in limited circumstances because:

  • Not all objections to the accuracy of the consultation process will lead to a full reconsideration of provisional decisions. It is not enough for a party seeking to quash a consultation exercise to point to some facts that are inaccurately presented. Determining the strength of shades of grey is generally not a matter for the court but the decision maker;
  • Courts should avoid the danger of stepping in too quickly and impeding the natural evolution of the consultation process through the grant of public law remedies and perhaps being led into areas for the professional judgment of the decision maker. It should, in general, only do so if there is some irretrievable flaw in the consultation process
  • A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful
  • A conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went “clearly and radically” wrong.

All very helpful!

Read more: 10 rules for planning for and organising a consultation

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