Dyer, R (in the application of) v The Welsh Ministers & Ors

The duty under section 3(1) of the National Health Service (Wales) Act 2006 requires the responsible authority to make a properly informed judgment about reasonable requirements and the services necessary to meet them. It does not require a formal decision for every conceivable patient cohort, nor does it create an individual entitlement to a particular treatment, facility or location.

The authority has a wide discretion over the scope of its planning, the information required and the manner and intensity of its inquiry. It may consider competing needs and limited resources, subject to ordinary public law review. Responsibility depends on the statutory allocation of functions: local health boards act for their areas, while specialised services may be planned nationally. The claim was dismissed.

The claimant, a young woman with autism spectrum disorder, learning disability and challenging behaviour, had previously been compulsorily detained in Wales and England. She challenged alleged failures by the Welsh Ministers, a local health board and the Welsh Health Specialised Services Committee to comply with section 3(1) of the National Health Service (Wales) Act 2006.

She alleged failures to collect relevant data, determine the reasonable requirements for secure services for women with autism spectrum disorder and learning disability, coordinate low-secure provision across Wales, and intervene in the alleged failures. The central issue was whether section 3(1) required discrete, cohort-specific decisions and a pan-Wales approach to planning.

1. Claim dismissed. None of the Welsh Ministers, the local health board or the Welsh Health Specialised Services Committee had acted unlawfully.
2. Section 3(1) imposed a general public law duty. The responsible authority had to ascertain the requirements it was obliged to meet before deciding how to meet them, but it retained a substantial margin of judgment. That judgment extended to the information needed and the manner and intensity of inquiry, subject to Wednesbury review. The authority could take account of finite public resources and competing demands.
3. The claimant’s proposed cohort—women with autism spectrum disorder and learning disability who might require secure in-patient care—did not require a separate formal assessment. Such patients could have materially different clinical needs, and planning could not sensibly be undertaken in isolation from other patients and priorities. The existing integrated planning process was capable of satisfying the statutory duty.
4. The statutory allocation of responsibility was clear. Local health boards exercised delegated functions in relation to their own areas and usual residents. Specialised services, including medium-secure provision, were directed to be exercised nationally through the Welsh Health Specialised Services Committee. The words “throughout Wales” did not impose a separate pan-Wales duty on every local health board, and there was no statutory duty to coordinate low-secure services between boards.
5. The duty did not confer an entitlement to a particular level or location of care. A future placement could be assessed for legality only when the relevant decision was made and in light of the circumstances then existing. Articles 8 of the European Convention on Human Rights and 19 of the United Nations Convention on the Rights of Persons with Disabilities added nothing to the claimant’s case; neither created a right to particular treatment or location.
6. The Welsh Ministers’ intervention powers were parasitic on an underlying failure by the delegated bodies. Since the alleged failures under grounds 1 to 4 were not established, the intervention claim also failed.

The judgment records an earlier related judicial review concerning the claimant’s placement at the Dene, in which permission was refused by the High Court: [2014] EWHC 3377 (Admin). The present claim was a first-instance judicial review and was dismissed.