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

The claimant, a general practitioner, sought judicial review of NHS England's decision to terminate two GMS contracts and of the NHS Litigation Authority's (the adjudicator's) decision upholding termination. The court considered whether (i) the Amendment Regulations 2019 (which inserted paragraph 15A into schedule 3 of the 2015 Regulations) had the effect of varying the claimant's non‑NHS GMS contracts to impose a duty to co‑operate with Primary Care Networks (PCNs), (ii) paragraph 15A applied on the facts, and (iii) compliance would breach data protection or duties of confidentiality.

The court held that the adjudicator had erred in treating the Amendment Regulations and a CCG letter of 28 October 2019 as having immediately and effectively varied the contracts to incorporate paragraph 15A. The letter did not comply with contractual variation procedures and did not validly insert a new contractual term. However, the court concluded that, because the contracts were non‑NHS contracts and the claimant had elected to use the binding NHS dispute resolution procedure, the adjudicator's determination and the commissioning body's termination decision were not, save for fraud or bad faith, amenable to judicial review. Accordingly the claimant's judicial review claim was dismissed.

This is a first instance judicial review claim by a GP operating two practices under non‑NHS GMS contracts. The claimant challenged remedial notices and termination notices issued by the local CCG (acting for NHS England) for refusal to co‑operate with a Primary Care Network, and the adjudicator's determination upholding termination.

• Procedural posture: permission for judicial review was previously granted; the contractual dispute had been referred to and determined by an adjudicator (Primary Care Appeals Service) on 24 June 2021.
• Relief sought: quashing of the adjudicator's determination and of NHS England's termination decisions and associated declaratory relief.
• Issues framed by the court: (1) amenability of the adjudicator's and commissioning body's decisions to judicial review; (2) whether paragraph 15A had been incorporated into the claimant's contracts (and if so with what effect); (3) whether paragraph 15A applied on the facts; and (4) whether compliance would breach data protection or confidentiality obligations.

The court analysed the statutory and contractual framework: sections 84–90 and 9 of the National Health Service Act 2006; the 2015 Regulations (notably regulations 82–84 and regulation 10); and the Amendment Regulations 2019 which inserted paragraph 15A into schedule 3 of the 2015 Regulations. The judge found that the CCG's letter of 28 October 2019 did not meet the contractual variation requirements (clauses 529–531) and therefore did not validly vary the contracts to incorporate paragraph 15A. That meant the adjudicator proceeded on an error of law insofar as he treated paragraph 15A as already forming part of the contracts.

On amenability, the judge reviewed the authorities (including Walsh, Mercury Energy, Supportways, Krebs and Haffiz) and concluded that where a contractor has entered into a non‑NHS GMS contract and has chosen to invoke the binding NHS dispute resolution process, the resulting adjudicator's determination and the commissioning body's termination decision are not generally susceptible to judicial review except in cases of fraud or bad faith. The court rejected a broad conception that every dispute involving public services is reviewable; it also considered and rejected human rights arguments (Article 6 and Article 14) advanced by the claimant, concluding that the claimant had waived relevant Article 6 rights by electing the dispute resolution process and that differential treatment was objectively justified by the availability of private law remedies. The court therefore dismissed the claim. The judge left open substantive data‑protection and confidentiality issues for fuller exploration in a suitable case.

The claim is dismissed. Although the adjudicator erred in treating paragraph 15A as already incorporated into the claimant's non‑NHS GMS contracts (the 28 October 2019 letter did not validly effect the required contractual variation), the claimant's challenge was not a matter amenable to judicial review. Where a contractor has a non‑NHS contract and elects the binding NHS dispute resolution procedure, disputes of this contractual character are to be resolved in private law (or by the contractual mechanism) and are not normally susceptible to judicial review except for fraud or bad faith. The court also rejected the claimant's human rights arguments and left open broader data‑protection questions for another case where necessary.