Welsh Air Ambulance judicial review fails

A High Court decision involving the reorganisation of air ambulance services in Wales will be of interest to health and care providers involved in local and national service reconfigurations.

The case concerned a challenge by way of judicial review of the NHS Wales Joint Commissioning Committee's (NWJCC) controversial decision to reorganise its air ambulance service (Emergency Medical Retrieval and Transfer Service), which handles only the most serious cases - about 1% of 999 calls - and operates separately from the Welsh Ambulance Services Trust.

Briefly, the case involved the consolidation of two of the existing ambulance services operating at the Welshpool and Caernarfon bases into a single site in North Wales, with longer operating hours. The rationale for the decision was that it would result in the service meeting more needs across Wales than is currently the case. However, the claimant argued that the NWJCC’s decision disadvantaged those communities located near the bases which were due to close.

Grounds of challenge

The claimant, a local resident of the Caernarfon area challenged the NWJCC’s decision on four grounds:

1. Irrationality: Acted irrationally by approving the recommendation without fully understanding the cost implications of the proposed changes. Specifically, failing to consider the costs of a decision made at the same time to develop a commissioning proposal for a bespoke road based enhanced critical care service in rural and remote areas. The claimant argued that this was required mitigation for the decision. However, the NWJCC’s case was that this was a whole separate proposal concerning the general ambulance service rather than the EMRTS.
2. Breach of the Tameside duty: Failed to ensure they were properly informed/had sufficient information before making significant decisions.
3. Adequacy of consultation and public engagement exercise.
4. Breach of the public sector equality duty: Failed to have regard to the potential adverse impacts on those persons with protected characteristics.

The decision

Mr Justice Turner dismissed the claimant’s case and concluded that the decision of NWJCC was ‘not irrational’, and that the Tameside duty was ‘duly adhered to’. He also rejected the claimant’s arguments that there had been a failure to consult finding the legal requirements for consultation were met. He also rejected the claimant’s case that there had been a breach of the public sector equality duty.

He concluded:

‘… it is not the function of this court to usurp the decision-making function of those to whom parliament has delegated the responsibility. In the absence of valid public law grounds of challenge, the decision of the JCC must stand.’

Substance over form

Changes to healthcare services are often controversial; therefore, it’s essential for providers to fulfil their public involvement and engagement duties to reduce the risk of challenge.

The Welsh Air Ambulance decision offers valuable insights into the approach a court should take when evaluating the decision-making process of a public authority.

Mr Justice Turner explains:

“It is, of course, important that a reviewing court should scrutinise all the relevant documentary material before determining whether or not a decision is flawed… However, there is a risk that, in the process of determining the central issues, too much weight may be placed upon the choice of words used in any given document or combination of documents selected from the voluminous material which has accumulated during the long process leading up to the making of the decision under challenge. 

The following factors fall to be taken into account:

(i) Care should be exercised to avoid embarking upon a minute textual exegesis of the wording of all documents generated in the lead up to the making of a decision at the expense of discerning the broader factors underlying the reality of the process involved and the central purpose of the exercise in the context of which the decision fell to be directed. The reviewing court must, at the conclusion of its journey, be satisfied that it has been able to see the wood for the trees;

(ii) The exercise of such care is particularly appropriate in cases, such as this one, in which the volume of documentation involved is very considerable and the opportunities for the detection of infelicities in the choice of language and ambiguity of expression are necessarily broadened;

(iii) The choice of words must be seen in the context of the particular purpose or purposes for which the relevant document was generated and the role, expertise and depth of knowledge of its author. Not all documents or sources command equal status in the exercise of forensic interpretation.”

If you require support with a judicial review challenge, please contact Sam Lindsay. Sam recently supported Cygnet Health Care in its successful Care Quality Commission judicial review challenge.