Judicial Review - a very public affair

Judicial Review (JR) is a public law proceeding where the High Court is required to consider the legality of a decision or action of a public body.  It can only be brought by a person or organisation that has sufficient interest in the decision which has been taken. 

It is not an appeal on the merits of a decision and can only be used where all appropriate alternative local remedies have been exhausted, including any rights of appeal available (which can include to the Ombudsman).  The point of a JR is usually to put right a bad decision rather than to get compensation, which means that a successful JR will not normally result in an award of damages.

There are three broad categories on which a Court can intervene, should the Judge be convinced by the merits of the case to do so:

Lawfulness

Where a public authority has made a relevant mistake on a legal issue which was part of its reasoning in making a decision, or stepped outside the legal limits of its powers;

Procedural fairness / impartiality

Where a public body has been unfair or partial for example by providing inadequate consultation, giving inadequate reasons, or bias (namely whether a fair minded observer, having considered the facts would conclude that there was a real possibility that the public authority was biased); and

Reasonableness / Irrationality

Where a public authority has acted unreasonably.  Indicators of unreasonableness (or errors of approach) include: fettering; illogicality; relevancies / irrelevancies; inequality; unfair abuses of power.

In some cases a further factor must be whether the decision was proportionate to the aim which it seeks to achieve.  Whilst not currently a separate ground of JR, this may change in the future.  However, a lack of proportionality could be used, for example, as an argument for a decision being irrational.

JR also plays an important role in public bodies complying with fundamental rights expected by an individual no matter their source.  This procedural process has also acquired greater significance following the implementation of the European Convention of Human Rights in domestic law by way of the Human Rights Act 1998.  Section 6 of the Human Rights Act makes it unlawful for a public authority to act in a way which is incompatible with a Convention right; and there is also a need for domestic decisions to comply with this legislation.   Broadly, it is often in the context of JR cases that human rights issues come before the Court for determination.

JR cases must be brought in a timely way, and in any event within three months.  The remedies in JR are discretionary, and the claimant must be seeking one or more of the following remedies:

A Mandatory Order - the Court will Order that a certain action must be taken, thereby requiring a public authority to do something;

A Prohibition Order – the Court will Order that a certain action must not be taken, ie preventing a public authority from doing something;

A Quashing Order – the original decision taken by the public body is quashed and needs to be taken again;

If a decision is quashed, the Court can refer the matter back to the decision maker to retake that decision in line with the Court judgement.  If however the Court considers that no purpose will be served in referring the matter back to the decision maker, the Court could take the decision itself, but this is rare, (perhaps, for example, arising in cases of illegality where an individual has been unlawfully detained).

A Declaration – outlining the Court’s view as to the lawfulness of a situation; or

Human Rights Act -  awarding damages for a Human Rights Act breach.

JR is a labour intensive and costly multi stage procedural process from pre-action protocol to issuing or defending a claim.  It is therefore important to robustly consider the prospect of success in bringing or defending a JR claim, and to consider how JR claims can be avoided in the first place, seeking expert input if appropriate. 

Tips to avoid Judicial Review

Set out below are some practical tips as to how JR may be avoided, or, if it cannot be avoided, pointers for ensuring that the JR process runs smoothly. 

1. Ensure that you are familiar with the policies and process that you are working to – you will need to be able to show in any JR proceedings that due process was followed so that any decision, outcome or conclusion reached (using those policies or that required process) can be argued to be fair, not beyond the scope of your powers (unlawful), or irrational – i.e, so perverse no reasonable organisation in the same position could have reached that decision.
2. Ensure that your decision making process is fully documented and follows a logical order.  This is essential in showing reasoned decision making in accordance with the process or framework which you need to apply.  This is very likely to be shared with wider individuals – it is therefore essential that an individual can understand how you reached your conclusions.
   
   You also need to ensure that decision making is robust and fully documented, as should this matter progress to further investigation – for example through the Ombudsman or even through JR – you need to consider the wider context of who is going to be considering those documents and how you reached your conclusions – this could be the Claimant, the Ombudsman, Solicitors or ultimately the Judge.
3. If JR is threatened, try to adopt a clear, transparent approach to try to deal with the issues in a co-operative way and in a spirit of openness.  It is helpful to know the issues which the individual is unhappy about, and it may be that you can allay concerns through clear explanation, or reach a compromise solution. 
   
   In addition, if JR is threatened, it may be possible to get an independent view on the process and outcome.  This can be useful (a) in reinforcing any outcome by the organisation if the independent outcome concludes the same, and (b) if JR is continued, this will be useful evidence in any proceedings.
4. Ensure that any individual within the public body can always give a clear account of what they have done and their role in the decision making process.  It may be that if matters do progress to JR, they will need to provide a witness statement in relation to that particular case, or how they applied the decision making framework.
5. Keep up to date with current developments in your area – Do you know about these – do you know what new features are?  This is important, and this, along with ongoing training means that you are well equipped to apply the relevant frameworks, criteria, tests and processes so as to be confident to stand behind a decision reached.

The challenges ahead…

Political and financial challenges transforming Community Services and Acute Health provision means that there is greater propensity for risk and challenges to decision making in areas including choice, resource allocation, specific care, commissioning, transitional arrangements, accountability and responsibility of decisions, including between health organisations and the Local Authority.

The process and framework followed to make a decision, rather than the decision itself is crucial, as is the audit trail of that decision making process whether this relates to strategic decision making or individual case management.

JR can be a very public and expensive legal challenge to defend.  This therefore involves adopting a proactive rather than reactive stance. 

The Bevan Brittan team has expertise in ensuring that health and social care organisations can be resilient to such challenges.  Our JR practice is to transfer skills to clients to anticipate where the risks of JR are, and to do something about it; implementing robust systems of clinical and managerial decision making across the organisation.  This is achieved by ensuring that there is organisational understanding of the importance of sound decision making and the best organisations have the ability to evidence this in a very clear and cogent way.  Our teams can analyse organisational risk and advise on governance around risk exposure.  This is underpinned by policy formulation and system reviews if required. 

Individual cases are dealt with in a pragmatic, cost effective and practical context to secure the very best solution and outcome for the client.  Each case is approached on a bespoke basis as each client presents differing profiles and case led requirements.