Sashi Shashikanth, R (on the application of) v NHS Litigation Authority & Anor

A contractual dispute concerning a non-NHS general medical services contract is ordinarily a private-law matter. The public and statutory setting of NHS primary-care provision does not, without more, add public-law rights or permit judicial review to improve the contractor’s contractual position.

Where the contract provides a binding dispute-resolution procedure, voluntary use of that procedure does not itself create a public-law route to challenge the adjudicator’s determination. Judicial review may remain available for fraud or bad faith, and for disputes arising from an NHS contract which cannot be enforced in private law.

A regulatory duty does not vary an existing contract merely because the regulations have come into force. A contractual variation must comply with the contract’s agreed variation machinery.

The claimant operated two GP practices under non-NHS GMS contracts. NHS Hillingdon CCG issued remedial and termination notices after he declined to cooperate with a primary care network and to provide patient data. He referred the dispute to the NHS dispute-resolution procedure, and the NHS Litigation Authority adjudicator upheld NHS England’s entitlement to terminate.

By judicial review, the claimant argued that the contractual duty to cooperate had not been incorporated, that the duty did not apply on the facts, and that compliance would breach confidentiality and data-protection obligations. NHS England first argued that neither its termination decision nor the adjudicator’s determination was amenable to judicial review.

1. The claim was dismissed. The adjudicator had proceeded on the mistaken basis that paragraph 15A of Schedule 3 to the National Health Service (General Medical Services Contracts and Personal Medical Services Agreements) (Amendment) Regulations 2019 immediately varied the contracts and imposed a contractual duty to cooperate.
2. The Amendment Regulations did not themselves vary the contracts. Under clauses 529–531, variation required the contractual mechanism to be used. The letter of 28 October 2019 was not an effective variation notice: it treated paragraph 15A as already contractual and purported to apply it from 1 October, before the letter. The adjudicator’s decision was therefore based on an error of law.
3. If paragraph 15A had been incorporated, its reference to patients being provided with services would not permit a contractor to defeat the duty by preventing provision. “Provided” had to be understood in the light of the policy, as covering services which patients were entitled to access. The data-protection and confidentiality issues were left undecided because they were unnecessary and had not been fully explored.
4. The claimant’s contracts were non-NHS contracts, creating private-law rights. Under Walsh, Mercury Energy, Supportways and Krebs, a public or statutory context does not supplement contractual rights with public-law remedies. The termination decision therefore could not be challenged by judicial review, absent fraud or bad faith.
5. The claimant voluntarily chose the contractual adjudication process instead of suing. That choice did not create a public-law element. Regulation 84(2)(b) removed contractual enforcement of the adjudicator’s determination but did not create a right to challenge it by judicial review. The adjudicator’s decision might be enforceable by judicial review where no contractual enforcement route existed, but the claimant’s contractual challenge was unavailable. The court also rejected the Article 6 and Article 14 arguments.