Christopher Ramage, R (on the application of) v Newcastle Upon Tyne Hospitals NHS Foundation Trust

The court refused permission for judicial review of the Trust's decision to issue a 12-month 'Red Card' exclusion. The refusal was founded on the adequacy of an alternative remedy: the defendant Trust's complaints procedure (expressly provided for in the Trust's Policy of Exclusion from Treatment of Violent and Abusive Patients and referred to in the Red Card decision letter). The court concluded that the complaints procedure was an appropriate first step to resolve contested factual and policy issues, that the claimant had not invoked it and had given no satisfactory explanation for failing to do so, and that judicial review is a remedy of last resort (see the Administrative Court Judicial Review Guide, §6.3.3).

The judge proceeded in the claimant's absence after ensuring adequate notice and opportunity to attend. Given the availability of the internal complaints route and the claimant's prior use of complaints processes, the alternative remedy point was decisive and the application for permission was dismissed without reaching the substantive merits including alleged breaches of §6 of the policy, the absence of a Yellow Card, or the claimant's Equality Act and Article 3 arguments.

Background and parties: The claimant, a litigant in person diagnosed with autism spectrum disorder and other conditions, sought permission for judicial review of a Trust decision (red card dated 8 August 2022) excluding him from secondary care for 12 months under the Trust's Policy of Exclusion from Treatment of Violent and Abusive Patients. The defendant Trust is Newcastle Upon Tyne Hospitals NHS Foundation Trust.

Procedural posture: The proceedings were ordered by Lavender J to be treated as an application for judicial review (13 September 2022) and were transferred into the Administrative Court. Permission was refused on the papers by Deputy High Court Judge David Pittaway KC on 1 November 2022. The claimant renewed the application for permission and sought an oral reconsideration. The judge heard the renewal in Leeds on 27 April 2023; the claimant did not attend but had been given notice and the court proceeded.

Nature of the application and issues: The claimant sought permission to challenge the Red Card decision. Central issues framed by the court were whether the Red Card breached the Trust's policy (notably §6 exemptions for patients with mental illness or disability and the process requiring Yellow then Red Card), whether the decision was unjustified or procedurally unfair, and whether there were arguable Equality Act 2010 (sections 15 and 20), Article 3 ECHR and bias claims.

Court's reasoning: The court identified three principal features: (i) the Trust's policy provides an express avenue to challenge a Red Card via the internal complaints procedure and required the decision letter to inform the patient of that right; (ii) the claimant had previously used the Trust complaints process on multiple occasions and remained within the 12-month window to complain about the Red Card; and (iii) contested factual matters as to what occurred in the department and whether reasonable adjustments were made were matters apt for investigation within the complaints mechanism. Relying on the Administrative Court Judicial Review Guide (2022) and the well-established principle that judicial review is a remedy of last resort, the judge held that the internal complaints procedure was an adequate alternative remedy which the claimant had not used and had not satisfactorily explained his failure to use. Because the alternative remedy point was dispositive, it was unnecessary to determine the substantive public law or equality arguments and permission was dismissed. The court made no order as to costs.

The application for permission to apply for judicial review is dismissed. The reasoning is that the defendant Trust's internal complaints procedure constituted an adequate and available alternative remedy, the claimant had not invoked that procedure or offered a convincing explanation for failing to do so, and judicial review is a remedy of last resort. It was unnecessary to decide the substantive merits of the alleged breaches of the Trust policy or the claimant's Equality Act and Article 3 arguments.

Proceedings were ordered by Lavender J (13.9.22) to be treated as an application for judicial review and transferred to the Administrative Court. Permission for judicial review was refused on the papers by David Pittaway KC sitting as a Deputy High Court Judge on 1.11.22. The claimant applied to renew permission and the renewal was heard in the Administrative Court (Leeds) on 27.4.23, when permission was refused.