A single interesting point of law emerges from the High Court judgment in South Staffordshire & Shropshire Healthcare NHS Foundation Trust v St George’s Hospital Managers, summarised by the judge, Mr Justice Cranston, as concerning ‘the capacity of a body to seek judicial review of a decision which it could have made itself‘.
Background
The principles addressed in the case are not limited to its facts, which relate to the narrow issue of detention under the Mental Health Act 1983,but they require a brief summary.
In short, the statutory power of an NHS foundation trust to discharge a patient from detention under the Act is capable of being delegated. Section 23(6) provides –
‘The powers conferred by this section on any NHS foundation trust may be exercised by any three or more persons authorised by the board of the trust in that behalf each of whom is neither an executive director of the board nor an employee of the trust.‘
In this case, the South Staffordshire & Shropshire trust had established a panel, consisting of a retired GP and two laypersons, to exercise this function. The Panel decided on the discharge of a certain patient, AU. The trust (and specifically AU’s responsible clinician, Dr Whitworth) thought this an ill-considered decision at odds with the interest of the patient and with public safety, and challenged it by way of judicial review.
There was no doubt that the trust had standing (i.e. a sufficient interest) to bring the claim. The question was whether it had capacity. Specifically, was the panel, by acting as a delegate of the trust’s function, standing in the shoes of the trust, so that by challenging it the trust was in effect seeking to judicially review itself?
The Judgment
On this question, four propositions emerge from the judgment.
First, unsurprisingly, a public body cannot seek judicial review of its own decisions [25]. No person could be both claimant and defendant to the same action.
Second, more surprisingly, there is a practical way around this restriction in those cases in which a public body wants to challenge its own decision. A member of the body, with its authorisation, could bring a judicial review in a personal capacity. The precedent for this is a planning case, R v Bassetlaw District Council ex p Oxby, where a resolution of the Council directed the Council leader to seek a judicial review of its own unlawful planning decision. The Court of Appeal permitted this approach, and indeed granted the relief sought.
Third, the normal position will be that where a function is permitted to be delegated to an independent person, that person will be treated as distinct from the body which delegates the function to it. This will be sufficient to allow the delegate to be the subject of challenge by the body which empowered it. In this case the panel was ‘sufficiently separate from and independent of the Trust to enable the Trust to bring a judicial review challenge to its decision’ [26].
This appears correct on the terms of the statutory provision considered in the case, and would also hold good in relation to any other provision in a similar form. However, the judge might have been required to reach a different conclusion if the statute had said (as some do) that the delegate was to be treated as performing the function for and on behalf of the trust. Absent such an express provision, the effect of the judgment is that the delegate will be viewed as an independent and distinct party.
Fourth, this logically means that such a delegate is to be treated as making a decision on its own account, and can be challenged accordingly. If it can be subject to judicial review by the body which delegated the function to it, it must be capable of judicial review by anyone with standing.
Again, this must be correct, but it has practical implications. Cranston J was unpersuaded by an argument on behalf of the panel that his conclusion would make lay people reluctant to sit on panels like the one established by the trust [27]. He was right to think that this ought to make no difference to his conclusions on the law. However, the chilling effect of this approach for private individuals – whether laypersons or professionals – is real. Given that the panel in this case had no corporate status, its members were individually exposed to the risk and costs of judicial review.
In practice, this will not prevent individuals from accepting such roles. But it will mean that (if well-advised) they are likely as a condition of doing so to require the public body to offer an indemnity against their costs, including any costs of defending a legal challenge. In turn this will make the business of delegation less attractive to any public body which is contemplating it, since the effect of the delegation will be to lose control of the decision but not of the risk and cost flowing from it.
There will still be many reasons why bodies which are empowered by statute to delegate to a third party will wish to do so. However, it is unlikely to constitute a free pass to shift the burden entirely elsewhere, unless the delegate is, ill-advisedly, willing to proceed on that basis. The panel members in South Staffordshire & Shropshire appear not to have considered the point until it was too late.
Conclusion
The starting position for any public body afforded statutory functions is that they cannot be delegated to a third party unless the statute makes express provision that they can.
In those cases where delegation is possible, it is necessary to distinguish cases in which the delegate is expressly acting on behalf of the public body from those where it is not. If the legislation is silent, the delegate will normally be treated as making decisions on its own account. This means that it will be challengeable directly in its own name, including by the very body which delegated the decision-making power to it in the first place.
That is likely to have implications for the terms on which bodies, and particularly private individuals, will be prepared to accept delegation.
On the other hand, South Staffordshire & Shropshire is also a reminder that for a delegate which does its job properly, judicial review need hold few fears.
Having established capacity to bring the challenge, the trust’s case comprehensively failed on its merits. As is often the case with highly fact-sensitive decisions, Cranston J held that it would ‘require quite exceptional circumstances in my view for a Panel’s decision to be reviewable by the court’ [27].
Public Law & Regulation 