Judicial Review Challenge to NHS in Wales successfully resisted

21/12/15

Claire Dyer V. The Welsh Ministers and Others

A major judicial review challenge to the NHS in Wales (with direct implications for the operation of the NHS in England had it succeeded) has been dismissed. Mr. Justice Hickinbottom gave judgment today in the Administrative Court on an application for judicial review brought by a 21 year old Claimant suffering from a complex mental health condition that included autistic spectrum disorder and learning disability. In the past, she had been compulsorily detained for medical treatment for mental disorder under the Mental Health Act 1983. She was concerned that given what she contended to be the absence of specialist facilities for her condition in Wales she would be detained (as she had been on the last occasion) in England many miles from her family and, it was argued, in breach of s. 3 of the National Health Service (Wales) Act (this provision is mirrored in the English legislation) and Article 8 of the European Convention on Human Rights.

In dismissing the challenge the judge made a number of important statements of principle in relation to s. 3 before applying to the facts; namely that: (i) s. 3 is a general duty with considerable judgment vested in the relevant authority, (ii) the measure of judgment extends to the way in which the s. 3 duty is to be discharged,  (iii) subject, only, to the Wednesbury principle the court will not prescribe how s. 3 decisions are to be made, (iv) some persons may, in the authority’s judgment,  not have sufficiently similar characteristics to be classified as a ‘cohort’ for the purposes of s. 3 even if they have reasonable requirements for health care, (v) even if they could be so classified it is unrealistic to impose upon the relevant authority an obligation discretely to consider every possible group and sub-group of patients and potential patient no matter how narrowly defined, (vi) the fact that s. 3 referred to services throughout Wales did not compel a pan-Wales approach to service provision provided that there was lawful delegation with appropriate provision where needed through specific directions.

Judgment