Llewellyn, R (On the Application Of) v Cardiff And Vale University Health Board

In reviewing a decision on funding EEA medical treatment, the court examines legality rather than substituting its own clinical assessment. Failure to meet administrative timescales does not automatically invalidate a decision where the delay is justified by the circumstances and causes no material unfairness. The assessment of “undue delay” must address the patient’s individual medical circumstances, but the decision-maker need not investigate a hypothetical NHS waiting time where the treatment has already occurred and the application has become retrospective. In a retrospective application, the reasonableness of awaiting prior authorisation may be relevant. Urgency may also be considered, provided it is not unlawfully substituted for the statutory undue-delay test.

The claimant sought judicial review of the defendant health board’s refusal to fund treatment received in Germany. Limited permission was granted on three grounds: equivalence between the German and UK treatment; failure to decide the application within the procedure’s timescales; and failure to consider retrospective funding.

The application originally concerned treatment for arachnoiditis. Following investigations in Germany, a further spinal condition was identified and surgery was performed. The health board later considered and refused the application, and its review panel upheld that decision. The issues were whether the delay in decision-making was unlawful, whether the board had adequately investigated and applied the “undue delay” test, and whether it had relied on urgency as an irrelevant consideration.

1. Judicial review standard. The court’s task was to determine whether the health board acted unlawfully on public law grounds. It was not appropriate to substitute the court’s assessment for that of the panel, to which Parliament had entrusted the decision.
2. Procedural delay. The defendant had not complied with the procedure’s stated timescales. That breach did not make the decision unlawful in the circumstances. The application changed materially after further medical information was received, and the treatment had already taken place. Quashing the decision would not have provided appropriate relief, particularly since the defendant accepted the failure to meet the timescales.
3. Undue delay. The statutory test required consideration of the individual patient’s medical circumstances. The panel expressly considered Professor Warnke’s discharge summary, which addressed the claimant’s medical history and the delay in diagnosis. Once treatment had already occurred, investigating the hypothetical NHS waiting time for treatment that would not in fact be provided was not a material consideration in this unusual retrospective case. The decision was justified and proportionate.
4. Urgency. Although urgency was not expressly identified in section 6B of the National Health Service (Wales) Act 2006 or the procedure, it could be relevant to a retrospective application because the procedure asked whether it was reasonable to await prior authorisation. In any event, the defendant treated urgency as an independent consideration and did not substitute it for undue delay.
5. The claim was dismissed.