In Weeks 21 and 22, we discussed the various policy reasons (non-justiciable issues) that might result in the courts not being prepared to consider a JR claim. Briefly summarise what these policy reasons/non-justiciable matters were.

PROBLEM SCENARIO:Criminal Law

Assume that the Health Services Act 2017 empowers health authorities and NHS Trusts to offer revolutionary new treatment to elderly people suffering from life threatening illnesses. The Act further provides that any decision of a local health authority or NHS Trust shall be final.

Henry is sixty-six years old and suffers from lung cancer. He has been told by his doctors that he is an ideal candidate for a new treatment regime and that this would give him a life expectancy of up to ten years. He is upset when Boldwood NHS Trust refuses to authorise the treatment. In a letter explaining the decision, Boldwood NHS Trust says that it has been swamped by similar requests and that, for financial reasons, it is carefully screening applicants.

The letter also explains that Boldwood Trust is prioritising treatment for women over 70 years of age because they seem particularly vulnerable to life-threatening illnesses.

Henry takes the letter to the Health Action Group, a well-established charity seeking to provide support and guidance for those with serious health problems. They are very concerned that this decision could have adverse consequences for their members if other local health authorities and NHS trusts adopt the same policy, namely to screen patients based on their gender and age.
Henry asks for legal advice on his position – he is keen to know if he has any legal avenues available to get Boldwood NHS Trust to reverse their decision.

Assessment – Questions:

1) (Worth 10 marks in total)

a) Identify the parties to any legal action that may arise from the problem scenario (the claimant/s and the defendant) – 4 marks

b) Identify and define the cause of action in this case (in other words, define Judicial Review, in your own words) – 3 marks

c) Does the final sentence in the first paragraph of the problem scenario affect your advice on the most appropriate legal path? If not then why? – 3 marks

2) (Worth 10 marks)

In order to make a Judicial Review claim, two initial conditions must be satisfied – the defendant must be a public body, and the issue must be a public law matter.

a) Define what is meant by the term ‘public body’. – 2 marks

b) Is the defendant a public body, and if so, why? – 4 marks

c) Is the issue in this claim a public law matter, and if so, why? – 4 marks

3) (Worth 15 marks)

a) Define who has the right to claim for JR and the legal basis that must be established when making a claim under JR. – 4 marks

b) Does Henry have the right to make a JR claim, and if so, why? – 4 marks

c) Does Health Action have the right to participate in the claim, and if so, why? – 4 marks

d) Discuss the relevance of the Greenpeace (R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No. 2) [1994]) case to the right to claim in this instance – 3 marks

4) (Worth 10 marks)

a) In Weeks 21 and 22, we discussed the various policy reasons (non-justiciable issues) that might result in the courts not being prepared to consider a JR claim. Briefly summarise what these policy reasons/non-justiciable matters were. – 6 marks

b) Which one of these policy reasons is likely to be relevant in Henry’s case, and why? – 4 marks

5) (Worth 10 marks)

Summarise, in your own words, the basic procedure involved in making a JR claim (see Week 22). – 10 marks

6) (Worth 30 marks)

a) In Weeks 23 and 24, we discussed the grounds for Judicial Review. Identify and briefly explain these three grounds, in your own words. – 15 marks in total, 5 marks per ground.

b) Of these three grounds, identify one which you believe is relevant to Henry’s case. Explain why this particular ground you have chosen is relevant, and use case law to justify your choice. Is the ground you have chosen a strong ground? – 15 marks

7) (Worth 10 marks)

a) Identify and define the 6 remedies that are available under Judicial Review, in your own words. – 6 marks

b) Of these 6 remedies, which one would you advise is the most relevant in this case? – 4 marks

8) (Worth 5 marks)

What is the chance of success of this claim (high, low, 50/50)? Justify/explain the rationale for this opinion. – 5 marks

 

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