South Staffordshire and Shropshire Healthcare NHSFT v Hospital Managers of St George’s Hospital (2016)
Keywords: Judicial review, Defensible decision making
This judicial review raises two important issues: (1) a point of principle about whether a body can seek judicial review of a decision which it could have made itself; (2) what are ‘relevant’ issues which must be taken into account for a decision to be rational.
(1) South Staffordshire and Shropshire Healthcare NHS Foundation Trust sought a judicial review of a decision to discharge a patient (who was detained under the Mental Health Act). The decision had been made by an independent panel to whom the Trust itself had delegated decision making power. So, essentially, the Trust sought a judicial review of a decision which it could have made itself but which was actually made by an independent body. The Trust clearly had sufficient interest in the issue to have standing in the matter. However, the case raised an issue of capacity. Is it legally possible for a public body to seek a judicial review of a decision which it had the power to take but which was taken by a body to which it had delegated that power (in this case, a independent panel).
Cranston J took the view that “the legal position changes given the nature of the delegation in this case, to a body which Parliament intends to be an independent decision-making entity… Consequently, the Panel is, in my view, sufficiently separate from and independent of the Trust to enable the Trust to bring a judicial review challenge to its decision.” (para 26)
(2) The Trust contended that the panel had failed to take in account relevant information (in this case, a recent tribunal decision against discharge) in reaching its decision and, therefore, that the decision was unreasonable (in the public law sense of irrationality). Cranston J’s conclusion was that not all information which is related to or could potentially inform a decision making process is ‘relevant’ information to the extent necessary to establish unreasonableness:
“Not every consideration which a decision-maker may take into account is, as a matter of law, a relevant consideration so that the failure to do so renders the decision unlawful. Relevant considerations to which a decision-maker must have regard might be clear on the face of the legislation conferring the decision-making power. If not explicit, a consideration might be so obviously material as a matter of statutory construction that it is a relevant consideration to which the decision-maker must have regard: In re Findlay  AC 318, 334B; R (Hurst) v. London Northern District Coroner  2 AC 189, . Otherwise a decision is not unlawful simply because it takes no account of a consideration which many would think is relevant, even the court itself, unless not to do so is Wednesbury unreasonable. Those considerations can be characterised as permissive considerations, in that it is up to the decision-maker to take them into account if she so chooses.” (para. 34)
Therefore, despite the existence of substantial evidence which might weigh against the ultimate conclusion reached by the panel, “the decision of the Panel on discharge was clearly open to it on the evidence before it and it has given clear reasons for reaching it.” (para. 42). The panel weighed the factors differently to the clinical team and, in fact, “this is a paradigm case where a panel has disagreed with the clinical team and discharged a patient where it considered the state’s compulsory power of detention could no longer be justified precisely, I would add, as Parliament contemplates can happen.” (para. 43)
Consequently the judicial review was dismissed.
ANALYSIS: (1) The implication of this judgement is that it is only possible for a body to seek a judicial review of a decision within its own power where a body to whom the decision has been delegated is separated from and sufficiently independent of itself.
(2) This case confirms once again the reluctance of the courts to interfere with the decision making of public bodies except in the most extreme of circumstances. Decisions are defensible provided relevant information has been considered. But this does not require the decision maker to weigh every factor in the same way as others, nor even to actually consider all the information which others might consider to be ‘relevant’. Where there is a statutory list of ‘relevant’ factors (as there is in relation to many key Care Act decisions, for example the list in Advocacy regulation 3 of ‘Matters to which a local authority must have regard in deciding whether an individual would experience substantial difficulty of the kind mentioned in section 67(4) of the Act’) these will clearly be relevant considerations. When such a list is not provided in the legislation (or the regulations or the guidance or statutory Code of Practice), then it is necessary to look at the wording of the statute itself and consider whether information is ‘obviously material’. So, for example, an eligibility decision under the Care Act which ignored clear and uncontradicted evidence that the adult needed a carer to spoon feed them would be failing to take into account information which is obviously material to deciding whether the adult is “unable” to achieve the outcome of “managing and maintaining nutrition” (Eligibility Regulation 2). However, if the decision maker merely balances competing evidence differently from others and makes a decision which does not give weight to evidence considered important by others, they are not failing to take account of relevant information unless their weighing of the evidence is Wednesbury unreasonable i.e. no rational decision maker could possibly have reached that conclusion.