Healthcare - March 2010
Issue in Haste Repent at Leisure
R on the Application of S v Hampshire CC
S is a child with Asperger’s syndrome and has
severe behavioural problems. Hampshire County Council carried out
an assessment of his needs in 2008. The assessment was the subject
of a complaint by S’s mother, dealt with under the Council’s
complaints procedure. S was re-assessed by the Council in 2009.
Following the assessment the Council resolved to provide certain
services to S. S’s mother disagreed with the assessment and the
decision made by the Council about the level of service S required.
On this occasion she did not bring her concerns to the attention of
the Council through its complaints procedure but instead instructed
solicitors to apply for a judicial review of the Council’s
decision.
Three remedies were sought: a declaration that
the Council’s Criteria for Services for Disabled Children were
discriminatory and in breach of the Disability Discrimination Act,
Sections 19-21 inclusive, as they discriminated against
children/young adults with severe mental health disorders; an order
setting aside the decision contained in the Council’s assessment of
S’s needs that no services were required; and a declaration that
the failure to provide services to S was irrational and
unlawful.
The applicant claimed that the Council was in
breach of its statutory duty under s 17 of the Children Act 1989
and that its 2009 assessment of S did not conform to mandatory
guidance and that the 2009 assessment was discriminatory because it
treated those with average or above average intelligence with
mental health disorders which are severe and profound less
favourably than those of below average intelligence. The applicant
alleged that the Council had failed to have regard to mandatory
guidance, namely the Children Act Policy Guidance, and the Children
Act Guidelines 2000 Framework for Assessing Children in Need and
their Families. In particular it was said that the Council’s core
assessment did not identify all S’s known needs, it understated his
severe mental health needs and was irrational. It was alleged that
the Council has failed to identify an appropriate care plan or to
consider what services were required to meet S’s needs, which was
unlawful. The applicant also alleged that the Council’s decision
was procedurally unfair as the relevant criteria were not disclosed
to S’s mother, and more generally, that there had been a failure to
provide appropriate services to S when he was at home with his
mother and not at his residential school.
The Council denied the allegations of
irrationality and unfairness, it also argued that the applicant had
an adequate alternative remedy available to her, namely the
Council’s complaints procedure, and she should have utilised this
before embarking upon judicial review proceedings. It was noted
that the pre action protocol for judicial review claims had not
been complied with, no letter before claim had been served and
there had been some delay in issuing the application.
Permission for J.R. was refused. It was held
that the Council’s assessment of S’s needs were not outside the
range of reasonable conclusions available to it. When looking at
the assessment process used by the Council the judge stated that in
such cases, the Court’s role is not as a decision maker, it is not
for the court to decide on the merits of a particular assessment.
The only question the court should ask is whether a reasonable
decision maker could have come to the conclusion reached by the
decision maker in that particular case.
The judge concluded that S’s mother had an
alternative remedy available to her, namely the Council’s complaint
procedure, and that she should have utilised that remedy prior to
making her application, as judicial review is a remedy of last
resort. The judge also commented that the fact that there was
a complete failure to comply with the pre action protocol and no
attempt made to avoid litigation would in itself warrant a
peremptory refusal of permission.
Cases such as these are a typical feature of
NHS and local authority health and social care provision. It is
usual for emotions to run high in such cases and, over recent
years, judicial review applications have been increasingly utilised
to challenge the clinical assessments made of service users’ needs.
This case illustrates that those who are reluctant to engage with
the process prescribed by individual health bodies and local
authorities, and who threaten to expose a clinical decision to
judicial scrutiny rather than engage with an organisation’s appeals
process or complaint procedure where the outcome of a such an
assessment does not accord with their own views, may be at risk.
The judge’s comments on compliance with the pre action protocol are
particularly noteworthy given the propensity of some litigants to
issue proceedings without warning.
Georgina Rowley,
Associate
Weightmans LLP