CH & Anor v Sutton & Merton Primary Care Trust

Where a public authority seeks to depart from a substantive legitimate expectation, the court must weigh fairness against the alleged overriding interest. If the justification depends on disputed evidence about the interests or welfare of affected individuals, the court must actively resolve that dispute. It is insufficient merely to review the decision-maker’s appraisal from a distance or to apply traditional rationality review. The court may need to receive oral evidence and make its own assessment of the relevant facts. The intensity of review depends on the right and the nature of the alleged breach. Where Parliament has not entrusted the public authority with the final determination of the individuals’ best interests, the court must determine that issue for itself.

Two linked proceedings arose from the defendant’s decision to close Orchard Hill Hospital, a long-stay hospital for adults with severe learning disabilities. The judicial review claim challenged the lawfulness of the closure decision. The related Family Division proceedings sought declarations concerning the claimants’ best interests and alleged interference with their rights under Article 8 of the European Convention on Human Rights 1950.

The defendant relied on the proposition that moving the residents into community-based accommodation was in their best interests and justified departure from promises that the hospital would be their home for life. The claimants disputed that proposition and argued that the court had to investigate the residents’ best interests on evidence, potentially including oral evidence. The immediate issue was the nature and extent of the enquiry required at this stage.

1. The court held that the defendant’s decision to close the hospital depended centrally on its assertion that it was in the best interests of all the residents to move elsewhere. That assertion was materially disputed.

2. Under R v North and East Devon Health Authority Ex p Coughlan [2001] QB 213, departure from a substantive legitimate expectation requires the court to weigh fairness against any overriding interest relied upon. Where the asserted justification raises factual issues, the court must actively resolve them rather than measure the decision from a distance.

3. The court applied the reasoning in R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419. The issue was not merely whether the defendant had acted rationally or had used a lawful appraisal process. The court had to determine for itself the disputed issue of whether moving the patients was in their best interests. That enquiry would almost certainly require evidence, including oral evidence.

4. The court rejected the argument that the case was concerned only with “precedent facts”. Whether treatment should be given, having regard to its likely effect, was the ultimate question, not a preliminary fact triggering a statutory power. The decision in R (Wilkinson) v Broadmoor Special Hospital Authority was therefore in point.

5. The caution in R(N) v M and Others [2003] 1 WLR 562 meant that oral evidence should not become routine in human-rights cases. Its necessity depended on the right involved and the nature of the alleged breach. Here, however, a less intrusive enquiry would itself breach section 6(1) of the Human Rights Act 1998.

6. In re W (A Minor) (Wardship: Jurisdiction) [1985] 1 AC 791 was distinguishable. Parliament had not entrusted the defendant with the final decision as to where the patients’ best interests lay. The patients were therefore entitled to contest the defendant’s assertion, and the court had to determine the issue.

7. The judicial review and Family Division proceedings were directed to the same subject matter and should, subject to further order, be heard together.

Not stated in the judgment. The decision concerned directions and the required scope of the court’s enquiry in two linked first-instance proceedings.