Berti, R (on the application of) v Royal Bournemouth & Christchurch Hospital Trust

Judicial review is not an appropriate route for a claim which is, in substance, one of medical negligence. Recasting the complaint as an abuse of power or relying on Convention rights does not convert clinical conduct into action by a public body. A challenge to a Health Service Commissioner’s refusal may in principle be amenable to judicial review, but it must be brought promptly. Where the refusal rests on lack of statutory power to investigate, and later correspondence creates no fresh decision, a claim lodged about two and a half years later has no prospect of success and provides no good reason to extend the usual three-month period.

Domenico Berti sought permission to appeal against Newman J’s refusal, on 6 April 2001, of permission to apply for judicial review. The proposed claim concerned treatment given to his late father by the Hospital Trust between October 1994 and April 1995, and the Health Service Commissioner’s refusal to investigate. Earlier civil negligence proceedings had ended after non-compliance with an order requiring fully pleaded particulars of claim and a fully pleaded schedule of special damages. The central issues were whether the complaints against the Trust and Commissioner were suitable for judicial review, whether the applicant had sufficient interest, and whether time should be extended.

Lord Justice Keene refused permission to appeal. The formal order was: Application refused.

1. The claim against the Hospital Trust was, in substance, an allegation of medical negligence. Dressing the allegation as an abuse of power did not alter its character. The surgeon was not acting as a public body in the relevant conduct, and the same applied to the nurses and ward sister. Judicial review was therefore inappropriate; the complaint had to be dealt with through ordinary civil litigation.
2. The reliance on Articles 1, 5 and 8 of the European Convention on Human Rights did not change that conclusion. Convention rights operated across English law, whether public or private, but did not by themselves bring the clinical conduct within judicial review.
3. Lord Justice Keene accepted that decisions of the Health Service Commissioner could be capable of judicial review in appropriate cases. However, the Commissioner’s refusal to investigate had been communicated on 14 July 1998, repeating an earlier position. The later correspondence did not amount to a genuinely fresh decision. The application, lodged approximately two and a half years later, was therefore far outside the usual three-month period, and there was no good reason to extend time.
4. The Commissioner’s position was based on section 6(1) of the Health Service Commissioners (Amendment) Act 1996 and the relevant Commencement Order 1996. The court considered the point legally sound: the Commissioner had no power or jurisdiction to investigate care and treatment occurring before 1 April 1996. The claim against the Commissioner consequently had no prospect of success, which independently justified refusing an extension of time.

1. Court of Appeal (Civil Division): On 20 June 2001, Lord Justice Keene refused permission to appeal and ordered that the application be refused: [2001] EWCA Civ 1015.
2. High Court, Administrative Court: Newman J refused permission to apply for judicial review on 6 April 2001, holding that the matters complained of were not susceptible to judicial review and questioning whether the applicant had sufficient interest.