18.50.2R (Justice for Health) v Secretary of State for Health [2016] EWHC 2338 (Admin)
It had been lawful for the Secretary of State for Health to promote a new staff contract aimed at facilitating a ‘7-day NHS’
Facts: the Secretary of State for Health introduced and strongly promoted new terms and conditions of employment for NHS staff including doctors so as to promote a ‘7-day NHS’. The BMA recommended acceptance but an association of junior doctors rejected the proposal, contending that the Secretary of State for Health had not power to impose such terms and conditions on them; that his decision-making was so opaque as to violate the public law principle of transparency and good administration and that his view that a ‘7-day NHS’ would remedy the higher mortality rate that occurred at weekends was illogical and irrational.
Judgment: Green J held that it had been lawful for the Secretary of State for Health to clarify that his position was that the NHS ought to introduce a new staff contract, in order to facilitate a ‘7 day NHS’ and that whilst he reserved the right to exercise his powers of compulsion he was not yet exercising such powers: whether he had powers of compulsion was an academic issue that did not fall for determination. He had made his position sufficiently clear. In addition, whilst there was a respectable body of expert opinion going the other way, the Secretary of State for Health was entitled to take the side of the argument represented by another respectable body of opinion, on the issue of weekend mortality rates:
186. In determining whether a decision maker has acted irrationally the intensity of the scrutiny to be applied by a Court is context sensitive. Case law tends to suggest that the following considerations will tend to broaden the scope of the margin of appreciation: where the decision maker is taking a decision in the health field with the objective of improving patient care; where the decision adopted is prospective and precautionary (ie based upon a prediction of future benefit and where there is perceived to be a benefit in acting sooner rather than later notwithstanding uncertainties); where the decision maker has indicated a willingness and intention to review the policy as it unfolds to ensure that it is in fact working adequately and to review and modify it to address emerging problems. These sorts of considerations apply in the present case. My prima facie conclusion however is that on the basis of the evidence (of causal connection between senior staffing levels and mortality rates) there is a sufficient evidential basis upon which the Minister could rationally act. That conclusion stands alone but it is also reinforced by these other considerations, all of which apply in some measure in this case.
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