Whapples, R (on the application of) v Birmingham East & North Primary Care Trust

A health authority’s statutory duty to provide primary medical services leaves it a broad discretion, subject to acting lawfully, rationally and within its budget. Judicial review does not entitle a patient to the particular care manager or care structure she prefers.

Article 8 may be engaged by care arrangements, but it does not compel immediate judicial intervention where procurement, budget and resource considerations are genuine, the authority is taking reasonable steps and lawful alternatives remain. Failure to undertake further mediation does not, without more, establish irrationality. Mandamus is exceptional and is available only where the law permits one outcome. An independent user trust is merely one option among several.

The applicant, a tetraplegic and severely visually impaired woman with chronic post-traumatic stress disorder, required continuous health care. A previous judicial review had been compromised by an agreement providing for an independent case manager and requiring any replacement to be agreed by both parties.

After the existing manager’s services ended, the respondent began a procurement process while arranging care itself. The applicant sought an interim order appointing a preferred manager and permission for judicial review based on irrationality, Article 8, mediation, legitimate expectation under the agreement and an independent user trust. Cranston J refused the interim relief and permission on most grounds, leaving the clause 7 issue stayed. The Court of Appeal considered the application for permission to appeal. The central issue was whether the respondent’s choices were unlawful, irrational or disproportionate.

Disposition

Ward LJ held that the application should be refused. Lord Justice Thomas agreed. The lower court had been correct to refuse the proposed interim order and the other grounds of challenge so far as they were determined.

1. Statutory discretion. Section 18 of the National Health Act requires primary medical services to be provided to the extent considered necessary to meet all reasonable requirements. The duty operates within the authority’s budget and gives it a broad discretion. The court’s role is supervisory: it ensures legality, rather than choosing the care arrangements itself.
2. Interim care manager. Clause 7 of the compromise agreement contained no default mechanism if the parties could not agree on a replacement. Failure to agree did not necessarily constitute breach, although a term requiring best endeavours might be implied. Any contractual dispute would not ordinarily be for the Administrative Court. On the public-law issue, the respondent was taking reasonable steps through the procurement process, and was entitled to consider procurement obligations, budgetary constraints, available resources and the deficiencies of the proposed manager. It was not obliged to appoint the applicant’s preferred choice.
3. Article 8 and mandamus. The court accepted that Article 8 of the European Convention on Human Rights might be engaged, but held that the respondent’s conduct was proportionate. The case was not one of the rare cases in which only one outcome was legally open. The principle stated in R v Ealing LBC ex p Parkinson [1996] 8 Admin LR 281 was applied. The applicant’s health and mental condition required careful consideration, but did not eliminate the authority’s lawful range of options.
4. Other grounds. Mediation was encouraged, but the evidence showed that an earlier meeting had attempted to resolve the dispute and failed. There was no arguable public-law duty to undertake further mediation. An independent user trust was one possible option, not the only lawful option, and the authority was entitled to weigh its advantages and disadvantages.
5. Wider observation. The court concurred with the concerns expressed by Collins J in Gunter v The South Western Staffordshire PCT [2005] EWHC 1894 Admin about medical-care disputes being unnecessarily drawn into administrative litigation. The application was refused, while the clause 7 issue remained open for further determination.

• Court of Appeal (Civil Division): On 7 April 2008, refused the application for permission to appeal. [2008] EWCA Civ 465
• Administrative Court, Queen’s Bench Division: Cranston J refused an interim order appointing a named interim case manager and refused permission on the mediation, Article 8 and legitimate-expectation grounds. The separate ground alleging breach of clause 7 was stayed for six weeks.