Shah, R (on the application of) v National Health Service Litigation & Ors

On judicial review, the court supervises the legality of a contractual decision rather than making the primary decision afresh. The decision is unlawful only where the decision-maker exceeds the lawful limits of its discretion, acts unfairly, errs in law, or reaches a decision outside the range of reasonable responses.

An expert appeal body may reconsider the facts and reach its own conclusion where the contractual scheme permits it. A practitioner’s professional suspension and the misconduct underlying it may be relevant, and potentially decisive, to whether a primary care contract should continue. The court will not quash a decision merely because another decision-maker might have reached a different conclusion.

The claimant, a general practitioner, challenged the termination of his General Medical Services contract by the South East Essex Primary Care Trust. The termination followed a finding by the General Medical Council that his fitness to practise was impaired by misconduct of a sexualised nature and his consequent suspension.

The claimant also challenged the determination of the Family Health Service Appeals Unit, within the NHS Litigation Authority, which concluded that the PCT was entitled to terminate the contract. He sought permission for judicial review and interim relief, raising issues concerning public-law review of contractual decisions, procedural fairness, consultation, irrelevant considerations, irrationality and the proper approach of the FHSAU.

1. Outcome. Permission to apply for judicial review and interim relief were refused. The decisions of the PCT and FHSAU were within the range of lawful responses open to them.
2. The contractual decisions were at least arguably subject to public-law scrutiny. The court’s role remained supervisory. It was not to substitute its own assessment of the facts, proportionality or the appropriate outcome for that of the primary decision-maker or expert appeal body. The relevant question was whether the decisions were lawful, procedurally fair, legally correct and within the permissible discretionary range, as explained in Bradley v The Jockey Club [2004] EWHC 2164, whose reasoning had been expressly approved on appeal in Bradley v The Jockey Club [2005] EWCA Civ 1056.
3. The Article 6 fairness complaint failed. Judicial review could remedy any technical shortfall in the earlier process. In any event, the claimant had voluntarily invoked the contractual dispute-resolution procedure and had received an oral hearing before the FHSAU, with legal representation and the opportunity to call and question witnesses. The Article 1 First Protocol claim could not stand independently.
4. The consultation obligation in clause 592 of the General Medical Services Contract was qualified by reasonable practicability and did not require the PCT to adopt the Local Medical Committee’s views. The FHSAU was entitled, on the evidence, to find that the LMC had been informed of the proposed course and given an opportunity to comment.
5. The unproven historic allegations did not undermine the result. The FHSAU was entitled to find that the PCT had relied only on the proven GMC findings, and the FHSAU itself had attached no weight to the earlier allegations. The claimant therefore could not obtain relief even if the PCT’s decision had been flawed in that respect.
6. The claimant’s suspension was a relevant consideration because it affected his ability to perform contractual duties and reflected the seriousness of the misconduct. The FHSAU had not treated the suspension as creating an automatic obligation to terminate; it had considered the GMC findings and the evidence afresh. This approach was consistent with R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55.
7. The FHSAU was entitled to conclude that the proven misconduct made the claimant unsuitable to remain a GMS contractor, notwithstanding the GMC’s decision to impose suspension rather than erasure, the passage of time, testimonials and the assessment that repetition was unlikely. Another decision might have been possible, but the decisions challenged were rational, proportionate and procedurally fair.

First-instance judicial review proceedings. The judgment itself records no appeal from this decision.