Why trusts are in danger from increased judicial review - and how to mitigate the threat

Most people are probably bored of hearing about the so-called crisis surrounding footballers’ love lives and super-injunctions by now. As a result of the whole saga, journalists and politicians have been left speculating about a constitutional crisis between the courts and Parliament over the right to privacy and freedom of expression.

But there may be a far more dangerous constitutional crisis already brewing between the courts and Parliament – this time over the courts’ willingness to intervene in government policy via judicial review.

Since 2003, the number of judicial review cases has risen dramatically (60 per cent), with claims not only against public bodies, but the likes of the National Institute for Health and Clinical Excellence, the government and government approved bodies such as the General Medial Council. Since the coalition came to power we have even witnessed public bodies themselves challenging central government decisions.

This trend is likely to continue. Earlier this year, a judicial review was brought against the education secretary, Michael Gove, over the decision to halt the Building Schools for the Future programme. The case, brought by six local authorities, was won in the sense that the decision was quashed by the court because it was deemed that the government had not consulted enough with the relevant local authorities. The oversight was, according to the judge, “so unfair as to mount to an abuse of power”.

This example of the courts intervening in government policy appears, on the face of things, to represent a constitutional crisis between the courts and Parliament, but in reality, the courts’ powers are quite limited. They are not actually able to impose their own decision following a judicial review, but can quash decisions if proper policy and procedures are not followed.

In the case of the DFE, the decision making process regarding Building Schools for the Future schemes will now need to happen again to ensure that proper consultation with the local authorities is taken.

This is an incredibly costly process both in terms of time and resource, so the court’s willingness to intervene via judicial review represents less a constitutional crisis, more a very costly warning (if any was needed), to public bodies in the health sector and to the government, that appropriate consultation and procedure should be followed to avoid making another statistic in the trend for judicial review.

Manage the threat

With the rise in judicial review cases expected to continue and the imminence of a cost-cutting transformation in the NHS, the issue of judicial review is one which will not go away. What should the health sector be doing to limit its exposure to judicial review and how can the threat of it be managed?

Consultation: Public bodies have a duty to consult those affected by any decisions they propose to make, before implementing any cuts. They must ensure they give due regard to their equalities duties and ensure that there is a clear record of the decision making process they undertake.

One example where this was not the case was in a recent case against an East Midlands council where it was found to have acted unlawfully in deciding to restrict adult care services to those whose needs were “critical” – that is, the most severely disabled.

While it is recognised that the spending cuts create significant and difficult obligations to cut costs, public bodies still have a duty to follow correct procedure and comply with legal requirements, such as equality duties. As a result, the council’s decision to reduce the funding was quashed by the courts.

Risk assessment: Public bodies should have a system for reviewing their procedures and decisions, particularly before decisions are finalised. They should try to identify whether there could be opponents of the decision and should make sure that they have taken into account all relevant factors. As the case described demonstrates, equalities duties in particular should be considered. If a public body has reached a decision after considering all relevant factors, the courts would be reluctant to overturn it.

Conflicts: Assess whether or not there are any apparent conflicts between statutory obligations and guidance from central government. If there are, it would be sensible to address the conflict with the relevant department and have in place an appropriate paper trail.

Managing judicial review: Finally, and most crucially, correspondence that threatens or intimates judicial review should not be ignored. There should always be appropriate procedures in place to deal with such correspondence and for seeking advice where appropriate – for example, “fast-tracking” threatened claims internally. You should also “stress test” the relevant decision as soon as possible to ensure that it stands up to scrutiny. This “stress testing” could be undertaken externally in appropriate circumstances, as it may save costs and time in the long run, not least because of the high costs of litigation. While each claim must be judged on its own facts, it is unlikely to be resolved unless it is addressed quickly and sensibly.

With an increasingly litigious society comes a greater propensity to turn to the courts, so the judicial review trend will no doubt continue. Against a backdrop of severe spending cuts and the resulting pressure this places on the health sector, the unnecessary costs associated with judicial review should, and can, be avoided to prevent a longer term financial impact.

While there may not necessarily be a constitutional crisis between the court and Parliament as such, there is a clear warning to the cash-strapped health sector, after the recent cases, to act now to avoid the otherwise inevitable effects of the judicial review trend.