Kellett, R (on the application of) v Southampton & South West Hampshire Health Authority

Judicial review examines the legality of a public authority’s decision, not whether an underlying medical assessment was correct. Where an authority relies on an expert consultant’s reports and confirmation that the consultant had sufficient material, the court will not re-investigate the evidence or determine the medical issue for itself. A claimant must establish an error of law, unreasonableness or another public-law defect. A challenge seeking only to establish the correctness of a diagnosis or alleged negligence does not justify permission to appeal.

After a complaint about medical treatment following a car accident, an independent review panel found no negligence but criticised communication and recommended referral to an unconnected consultant neurologist. The Health Authority later declined to convene another review, relying on the consultant’s reports and confirmation that he had sufficient information.

Mrs Kellett sought judicial review. Before Lightman J, the matter was treated as turning on whether she had arachnoiditis. The central issue before the Court of Appeal was whether the Authority’s decision not to investigate further involved an error of law or other public-law unlawfulness, rather than whether the medical opinions were correct.

1. Disposition. Lord Justice Buxton dismissed the application for permission to appeal. Any appeal would be bound to fail.
2. Scope of review. The court was not deciding whether Mrs Kellett had arachnoiditis, whether the Southampton doctors or Dr Perkin had been negligent, or what medical material Dr Perkin ought to have considered. Those were merits and evidential questions. The relevant question was whether the Health Authority’s February 2001 decision not to hold a further independent review disclosed an error of law, unreasonableness or conduct contrary to public law.
3. Reliance on expert opinion. The Authority relied on two reports from Dr Perkin, an unconnected consultant neurologist, and on his confirmation that he had sufficient information, including the MRI scan report, to reach his opinion. The documents suggested some uncertainty about which scans had been available, but that did not establish legal error in the Authority’s reliance on the expert evidence.
4. Application of the principle. The Court of Appeal would not re-weigh the evidence or substitute its view on the medical question. An additional report said to support the diagnosis did not alter the issue, because the court was not conducting a fresh medical investigation. No public-law defect had been shown, so the decision not to investigate further stood.

1. High Court of Justice, Queen’s Bench Division, Administrative Court: Mr Justice Lightman gave judgment in the judicial review proceedings on 8 August; no citation is stated in the judgment.
2. Court of Appeal (Civil Division): Lord Justice Buxton dismissed the application for permission to appeal, holding that any appeal would be bound to fail.