What is Judicial Review?
27 Apr 2009
Judicial review is a type of court proceeding in which a judge can review the lawfulness and reasonableness of a decision or action made by a public body. Essentially it allows the courts to supervise the exercise of public power. Where rights under the European Convention of Human Rights are engaged, then the issue of proportionality will also be a relevant factor in the courts assessment of the application.
A healthcare regulator falls under the definition of a public body for these purposes with the majority listing public/patient protection as their primary function.
Judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. As you are aware, the regulator operates under specific rules which it is bound to follow. If there is a deviation from these rules or they do not apply them correctly, then this may give rise to grounds for judicial review. In order to initiate a claim for judicial review, the person must be deemed to have sufficient standing. Put simply, this usually means you have been affected by the decision to request that the court review it.
Following judicial review proceedings it is possible for the public body to be able to make the same decision again, so long as it does so in a lawful way.
An application for judicial review is made to the Administrative Division of the High Court. The first stage is to obtain permission from a judge to make the application before the court. If this is granted then a full hearing will take place. It is not unheard of, depending on the issues, for a permissions hearing and substantive hearing to be dealt with in one session.
If you want to argue that a decision was incorrect, judicial review is not necessarily the correct legal path. There are alternative remedies, such as appealing against the decision to a higher court. For example, if you have been deemed impaired and suspended by a Fitness to Practise Panel and wished to appeal this decision, your appeal route would be by way of your statutory right of appeal under s.40 of the Medical Act 1983. However, if you wished to appeal the decision of the case examiners to refer your case to a Fitness to Practise Panel, you would need to do this by way of judicial review as you have no other right of redress against a decision by a public body.
Judicial review should be seen as a last resort as it is potentially an expensive and intense process. If you are unsuccessful, you are likely to be held liable for your opponent’s legal fees as well as your own. Therefore if you feel you may have grounds for judicial review, speak to a MAS advisor and you will receive an honest assessment of your prospects.