SH, R (on the application of) v London Borough of Camden & Ors

An application for judicial review must be brought promptly and, in any event, within three months of the decision challenged. A clinical or public-service decision is not arguably unlawful merely because another professional, or a parent, would prefer a different approach. An arguable case requires evidence of a decision that no reasonable clinician could have made, or other identifiable public-law unlawfulness.

An assessment under section 17(1) of the Children Act 1989 does not convert the general duty into a specific duty owed to an individual child. Without an arguable public-law claim, restitution cannot be sought under CPR 54.

The claimant, a 16-year-old child, sought permission for judicial review of alleged failures by Camden and health authorities to assess her needs and provide appropriate therapeutic treatment. The claim alleged continuing breaches of statutory and public-law duties, unlawful withdrawal of treatment, and serious misconduct in the keeping and use of records.

Permission had previously been refused on the papers. The renewed application was adjourned several times to allow the claim to be particularised and supported by evidence. The central issues were whether any arguable public-law duty had been breached, whether the clinical decisions were unlawful, and whether the claim was sufficiently timely and evidenced.

1. Permission refused and application dismissed. The claimant had been given repeated opportunities to identify the decisions challenged, particularise the alleged breaches, provide evidence and organise the material. She failed to demonstrate an arguable case.
2. Challenges to decisions made before 2005 were hopelessly out of time. Judicial review must be brought promptly and in any event within three months of the decision under challenge. The challenge to the refusal to include the claimant on Camden’s register of children with a disability was also unsupported by evidence establishing Camden’s criteria or showing that their application was arguably unlawful.
3. The clinical decision that regular or individual physiotherapy was not justified was not arguably unlawful. Where clinicians may reasonably hold different views about treatment, choosing one clinically supportable approach rather than another is not unlawful merely because the patient’s parent disagrees. The relevant threshold was whether the decision was arguably one that no reasonable clinician could have made.
4. Section 17(1) of the Children Act 1989 imposed duties of a general character. An assessment of a child’s needs under that provision did not crystallise the general duty into a specific duty owed to the individual child. Applying R(G) v Barnet LBC [2003] UKHL 57, the court held that Camden’s assessment that the claimant’s needs were being met was not arguably unlawful.
5. The claimant’s allegations of record fabrication, falsification and deliberate misrepresentation were not established by the documents. Administrative inaccuracies and procedural misunderstandings did not demonstrate arguable illegality in the clinical assessments or treatment decisions.
6. The proposed restitution claim under CPR 54.3(2) could not proceed in the absence of an arguable public-law claim. In any event, the expenses claim formed part of the subject matter of separate County Court proceedings.

The court expressed the hope that the council and health authorities would consider the claimant’s more recent clinical recommendations, while also observing that a less confrontational approach by her father would assist future dealings.

Permission was refused on the papers by Silber J. The claimant renewed the application. It was subsequently adjourned by Forbes J and Beatson J to permit clarification, evidence and proper organisation of the claim. Beatson J refused permission and dismissed the application.