Tue, 22 Dec 2015
Mr Justice Hickinbottom confirms that “subject to the Wednesbury test, the court will not interfere with or otherwise prescribe how section 3(1) [of the National Health Service (Wales) Act 2006] decisions are made”  EWHC 3712 (Admin)
1. Rebecca Stickler (led by Rhodri Williams QC) has successfully represented Abertawe Bro Morgannwg University Health Board (“the Health Board”) and the Welsh Health Specialised Services Committee (“WHSSC”) in a judicial review claim brought by Claire Dyer (acting by her mother and litigation friend) alleging a failure to discharge the duty imposed by section 3(1) of the National Health Service (Wales) Act 2006.
2. In light of the mirror s.3(1) duty in the National Health Service Act 2006, this judgment will also be applicable to s.3(1) decisions taken by Clinical Commissioning Groups in England.
3. Claire Dyer is 21 years of age and suffers from autistic spectrum disorder (“ASD”) and learning disability (“LD”). On four separate occasions, Miss Dyer has been compulsorily detained in various hospitals for assessment and treatment under sections 2 and 3 of the Mental Health Act 1983. In August 2014, the Claimant was compulsory detained in a hospital in Brighton. Miss Dyer’s family organised a petition pressing for the Claimant’s prompt return from Brighton to Wales, which attracted nearly 100,000 signatures.
4. The claim alleged a failure by the public authorities responsible for the National Health Service in Wales to discharge the duty imposed upon them by section 3(1) to provide hospital accommodation to meet all “reasonable requirements” of women with ASD and LD. The claim was supported by two national charities, Mencap Cymru and Learning Disability Wales.
5. The specific grounds of challenge alleged that section 3(1) was breached because (paragraph 94):
a. the Health Board and/or WHSSC had failed to collate the data required to enable them to discharge the duty imposed by section 3(1) to make appropriate decisions in relation to the provision throughout Wales of low and medium secure hospital accommodation for women with ASD and LD;
b. the Health Board had failed to take any decision as to the reasonable requirements for low secure services of women with ASD or LD in its own area;
c. WHSSC had failed to take any decision as to the reasonable requirements for medium secure services of women with ASD or LD in Wales;
d. the Health Board had failed to take a co-ordinated approach with the other Welsh Local Health Boards to the delegated section 3(1) duty in relation to low secure provision for women with ASD and LD;
e. the Welsh Ministers had failed to take steps to remedy those failings of the local Health Boards (including the Health Board) and the WHSSC.
6. The Claimant also relied “albeit generally and gently”, upon article 8 of the ECHR read with article 19 of the United Nations Convention on the Rights of People with Disabilities.
7. The claim was heard by Mr Justice Hickinbottom on 17 and 18 November 2015 and all grounds of challenge were dismissed.
How should section 3 be interpreted?
8. The judgment considers at length how section 3(1) of the 2006 Act should be applied by the Courts. In summary, Hickinbottom J confirmed that “subject to the Wednesbury test, the court will not will not interfere with or otherwise prescribe how section 3(1) decisions are made” (paragraph 107).
9. The learned Judge held:
(a) “section 3(1) is a general duty …. and, as the authorities emphasise, the “obligation is limited to providing the services identified to the extent that [the relevant authority] considers that they are necessary to meet all reasonable requirements…… This necessarily places considerable discretion – or judgment as, in this context, it is perhaps better described – in the hands of the authority” (my emphasis) (paragraph 105);
(b) “….the exercise of judgment is not restricted to the substantive scope of the reasonable requirements, and the services the relevant authority considers necessary to meet those requirements. The authority also has a substantial degree of flexibility as to how it goes about its task……. This principle is particularly strong – and the margin granted to the relevant authority particularly wide – where the discretion being exercised is in the context of an assessment involving judgmental balancing of complex socio-economic factors made against a policy backdrop” (my emphasis) (paragraph 107);
(c) “It is for the relevant authorities (the LHBs and the WHSS Committee in this case) to consider the criteria for the scope relevant clinical areas in respect of which, in their considered view, planning can best be made. The authorities have a wide margin of discretion in respect of the criteria they chose, and how they apply them. This assessment too requires judgment with which, for the reasons I have given, the courts will not lightly interfere” (paragraph 111(i));
(d) “It is unrealistic to impose upon the relevant authority an obligation discretely to consider every possible group and subgroup of patients and potential patient, no matter how narrowly defined, who may wish to use the services of NHS Wales; and to make a discrete decision as what their precise requirements will be and whether to prioritise their needs or otherwise favour them over others with different health requirements. The relevant decision-making process is therefore particularly sophisticated. It can sensibly be done – and, perhaps, only sensibly done – in the context of a scheme whereby the requirements of all patients and potential patients are taken into account somewhere along the line” (my emphasis) (paragraph 111(iii)).
Is there a duty on Welsh Local Health Boards to collaborate with other Health Boards to assess the need for services on a pan-Wales basis?
10. The learned Judge also made clear that “each LHB is …. responsible for, and only responsible for, the health functions delegated to it for its own area and for the persons usually resident in that area” (paragraph 118) and there is no duty “upon each to collaborate with the other LHBs to assess the need for services on a pan-Wales basis” (paragraph 119).
Articles 8 ECHR and article 19 United Nations Convention on the Rights of Disabled People
11. At paragraph 138, Hickinbottom J confirms:
(a) Neither article 8 nor article 19 gives a patient a right to demand any particular type or location of treatment. In particular, it does not give such a right regardless of the needs of the rest of the health service, and regardless of the rights and interests of others, including other patients and healthcare workers.
(b) The UHB has carried out an assessment with regard to both current care and treatment, and the plan is a crisis were to occur in the future. If and when any future actions are taken, any alleged interference with these rights would have to be examined against the circumstances at that time. There is no current, even arguable, breach of article 8.
(c) The UNCRD has not been adopted into the laws of Wales, and does not appear to be engaged on the facts of this case.
(d) Whilst the Claimant may have a right to have a properly informed decision under section 3(1), I have found that that right has not been breached. Reference to article 8 and/or article 19 does not add anything to the submissions already made on those grounds.
12. This case provided the Court with an opportunity to look again at the discretion afforded to public authorities when making decisions about how health services should be provided by the NHS. Importantly, the judgment makes clear that s.3(1) provides considerable judgment to health authorities in terms of the substantive decision itself and in relation to how such decisions should be taken.
This article was written by Public Law Barrister Rebecca Stickler, click here to view Rebecca Stickler's profile.