Differences between a judicial review and referral to the Secretary of State
Friday, 12 July, 2019
Decisions taken by the NHS on the reconfiguration of services can be challenged through two different and entirely separate processes:
An application for a judicial review
A referral to the Secretary of State for Health and Social care for a review by the Independent Reconfiguration Panel
The table below gives an overview of the differences between these two processes.
Referral to the Secretary of State
Who initiates the process?
Usually a private individual (although may be funded/supported by campaign groups)
Local authority overview and scrutiny committees
What are the key steps in the process?
‘Letter before claim’ sent to public body (i.e. the NHS). The letter before claim can be an opportunity to resolve the matter outside of the courts.
Public body responds to letter before claim and claimant decides whether to progress the claim
If they do progress the claim, the claimant files summary grounds with the court
Public body provides response to summary grounds
Judge reviews the papers and decides whether to grant permission for the judicial review
If permission is granted a court date is set and detailed arguments prepared
Both parties present their case to the judge
The judge makes a decision about the claim and whether to grant any ‘relief’ to the claimant.
Local authorities are expected to work with the NHS to resolve differences before making a referral
If this is not possible, the local authority writes to the Secretary of State for Health and
Social Care (SofS) requesting a review by the Independent Reconfiguration Panel (IRP)
The SofS decides whether to ask the IRP to carry out a review
If the SofS does ask for a review, the IRP asks NHS England to provide detailed information on the proposals and the process followed
The IRP looks at the information and makes a recommendation to the SofS
Before making its recommendation, the IRP can hold interviews with key stakeholders, visit the sites in question etc to gather more information on which to base their advice
The SofS decides what action should be taken.
What are the grounds or points that can be challenged?
There are three grounds for bringing a judicial review:
Legality: the public body’s decision must not break the law and should usually follow guidance and policy
Fairness: public bodies must act fairly, this includes complying with their duty to consult
Irrationality and proportionality: Whether a decision is so unreasonable that no reasonable authority could ever had come to the same decision. In practice this is hard to prove.
Local authorities can challenge decisions on the following grounds:
Consultation has not been adequate
Inadequate reasons given for not carrying out consultation
The proposal would not be in the interests of the health service in its area.
What is the timescale for the process?
If permission is granted, it will take several months for the hearing to be held, although either party can ask for the case to be expedited to reduce the timescale.
The IRP process takes between a few weeks and a few months to complete. The exact timescale is dependent on the workload of the IRP and the complexity of the issue being considered.
Who decides the outcome?
A judge from the Administrative Court (division of the High Court).
The IRP is made up of members with expertise in clinical healthcare, NHS management, public and patient involvement.
The IRP provides advice to the SofS. It is the Secretary of State who decides what action, if any should be taken as a result of the advice.
What are the possible outcomes?
The judge can grant different types of ‘remedy’ if the claimant is successful:
quashing orders: quashes the decision. Public body decides whether to re-run the decision-making process
mandatory orders: mandates the public body or court to carry out a duty that it is obliged to execute by law
prohibiting orders: prevents a public body or court from acting beyond its powers in the future
injunctions: either force or prohibit something
declarations: clarifications on a point of law
damages: monetary compensation.
Just because a claimant is successful, they are not automatically entitled to either the remedy they asked for, or any remedy at all. The judge may find in favour of the claimant but may not require any change to the decision that has been made.
Advice from the IRP may include recommending that further work is carried out locally by the NHS to explore other solutions or to further consult or engage local communities.