Junior doctors’ High Court challenge to Jeremy Hunt
BMJ 2016; 354 doi: https://doi.org/10.1136/bmj.i4972 (Published 14 September 2016) Cite this as: BMJ 2016;354:i4972
Abstract
As the junior doctors behind Justice for Health prepare for next week’s judicial review of the decision to impose a new contract in England, Clare Dyer looks at the case
Next week the dispute over the new contract for junior doctors in England moves from the picket line to a new battleground: the Royal Courts of Justice in London. On 19 and 20 September five junior doctors are mounting a legal challenge in the High Court to health secretary Jeremy Hunt’s power to impose the contract on them.
How has the case got to court?
Five junior doctors—Marie-Estella McVeigh, Francesca Silman, Ben White, Nadia Masood, and Amar Mashru—raised money using the online crowdfunding platform CrowdJustice. They raised £300 000 from more than 5000 donors. They secured the services of Bindmans, a public law firm, and set up the company Justice for Health to take the case forward. A High Court judge gave the go ahead for the two day expedited hearing starting on 19 September.
What’s the basis of the case?
Justice for Health is seeking a judicial review of Hunt’s decision to impose the contract, which is set to be phased in from 5 October.
Judicial review is a procedure for challenging the lawfulness of decisions by public bodies. In this case, lawyers for the junior doctors argue that Hunt’s decision was unlawful because he had no power in law to make it. Hunt’s lawyers accept that he has no power to impose the contract but argue that his decision was only to make a non-binding recommendation to NHS employers to use the standard contract.
There are two more grounds for the challenge. Justice for Health argues that Hunt breached his duty of clarity in stating that he was going to “impose,” “introduce,” or “implement” the contract, making NHS organisations and the public believe that he had such a power when he did not. And it accuses him of irrationality in stating that the reason for the contract was to ensure patient safety in the proposed seven day NHS, when there is no evidence linking mortality at weekends with the role of junior doctors.
How will the case unfold?
The junior doctors’ case will be presented by Jenni Richards, a persuasive QC who recently won the right for a 60 year old woman to use her dead daughter’s frozen eggs to try to conceive her own grandchild.1 An equally well regarded QC, Clive Sheldon, who often represents the government and is described by a legal directory as “great to have on your side in a scrap,” will put forward the health secretary’s arguments.
In a judicial review case the court is not concerned with the correctness of the decision that is being challenged but only with whether it was reached in the correct way. If Mr Justice Green, who is hearing the case, decides that the decision was unlawful, he can quash it, although he cannot substitute his own decision.
The judge could accept Hunt’s argument that the decision he took was only a non-binding recommendation and not an imposition and therefore within his legal powers. Or Green could declare the decision unlawful and quash it, with the expectation that Hunt would take a fresh decision. Judgment is expected within days.
Will the outcome affect the dispute over the contract?
Not necessarily. Even if the judge decided that Hunt had acted unlawfully, the health secretary could still go ahead with the same contract provided that he took a fresh decision framed as a recommendation and based on valid reasoning.
Justice for Health’s lawyers contend that a fresh decision should be supported by proper reasons, because junior doctors and their employers need clarity about their right to agree on terms that differ from the new contract.
“The law is a very significant independent force,” says Ben White, one of the five Justice for Health doctors. “I think we all felt that a lot of decisions made at a very high level were deeply wrong, and we would like to see if a judge thinks that too.”
Saimo Chahal, solicitor for the Justice for Health doctors, adds, “What these doctors are doing is saying that the public interest demands that Mr Hunt now account for his actions, as every NHS employee needs to know what Mr Hunt can and cannot do.”