England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/05/2014

His Honour Judge Anthony Thornton QC:

This judgment briefly sets out my reasons for granting the claimant's renewed application for permission to apply for judicial review at the hearing on 26 March 2014. I announced my decision at the hearing and informed the parties that if either party wished me to set out my reasons for granting permission, I would do so. The claimant's solicitors have notified the court that the claimant would like my reasons. These are set out below. This judgment was formally handed down in open court on 9 May 2014.

Critical steps

1. The claimant had a RITA E Appeal Panel (AP) hearing in December 2010. The AP had had referred to it two separate appeals:

(1) An appeal from the RITA E panel's decision dated 10 December 2010 issuing a RITA E to the claimant; and

(2) An appeal from the RITA E panel's decision dated 10 December 2010 that the claimant's NTN should be withdrawn.

The AP sat as both a Stage 2, Step 2 appeal panel (in relation to the RITA E decision) and a Stage 3, Step 2 appeal panel (in relation to the NTN decision) whose jurisdiction is created by paragraphs 22 – 26 of Section 13 of the Orange Book.

2. On 9 March 2011 the AP's appeal decision was promulgated. This decision:

(1) Confirmed the RITA E panel's decision to award a RITA E; and

(2) Directed that the RITA E panel's decision that the claimant's NTN should be withdrawn should be suspended until an independent report was obtained which reported on whether there were realistic prospects of the claimant completing training and reaching a position in which he could undertake independent consultant level practice.

3. The AP commissioned NCAS to undertake the assessment. NCAS assembled an assessment team comprising an assessment manager, an adviser, a lay assessor, two clinical assessors, a context adviser, an occupational health assessor and a behavioural assessor. The assessment process was both long and involved and a draft of the assessment report of the whole team running to 82 pages was provided to the claimant and the Deanery in July 2012. The claimant and the Deanery represented by the Deputy Postgraduate Dean (who was also the Chairman of the AP) were invited to comment on the draft report. Both provided written comments which were discussed at a meeting between both of them and a representative or representatives of the NCAS assessment team that was held on 17 September 2012. The documents do not identify which members of the NCAS assessment team were present although it is to be inferred that the assessment manager was one of those who were present.
4. The Deputy Postgraduate Dean appears to have been present both in his capacity of representing the Deanery and as Chairman of the AP. The claimant was informed by the Deputy Postgraduate Dean, in his capacity of Chairman of the AP – it is not clear when but probably at the meeting held on 17 September 2012 – that:

(1) The AP would not consider any new material generated or anything occurring after 9 March 2011 save for the NCAS report and would not permit the claimant to adduce evidence of such material; and

(2) The claimant would not have the right to be represented, to attend or to present any further evidence to the AP when it reconvened.

5. The NCAS report was finalised and submitted to the AP and the claimant in early October 2012.
6. The AP concluded the NTN appeal and issued its decision following their closed meeting on 19 October 2012. It dismissed the appeal and, in its conclusions, it stated that whilst there may be the possibility of the claimant achieving all the requirements of the Specialist Training Curriculum at some point in time, there was no reasonable expectation that this would be within a timeframe possible under the Specialist Training arrangements. Its decision was to confirm the decisions of the original RITA E panel:

(1) To issue a RITA E for the period under review; and

(2) To remove and withdraw the claimant's NTN.

Procedure

7. The AP was conducting 2 separate appeals. The first was an appeal against the RITA E. This appeal was concluded by the AP's March 2011 decision. The second was an appeal against the removal and withdrawal of the NTN and was set up and being conducted under the 2-step procedure set out in paragraphs 16 – 23 of Section 13 of the Orange Book. No formal rules of procedure are set out so that the AP was required in law to act within its jurisdiction, fairly and in a way that enabled the claimant to present his own case and meet the case against him. Furthermore it was acting as an appeal body and not a review body.
8. Two express provisions in Section 13 of the Orange Book should be noted:

(1) Paragraph 22 provided that the claimant had the right to be represented at the hearing, to address it and to submit written evidence beforehand; and

(2) Paragraph 9 provided that the appeal was a procedure whereby the decision of a body (i.e. the RITA E panel) was considered by another body (i.e. the AP). An appeal "can take into account both information available at the time the original decision was made, newly submitted information and the representations of the appellant (i.e. the claimant)".

Claimant's complaints

9. The NTN appeal was one that followed a very lengthy prior series of steps. The RITA E had originally been issued in October 2009. A further RITA E was issued in July 2010. This second RITA E was set aside in October 2010 by an earlier AP. The RITA E (presumably only the July 2010 RITA E) was the reinstated in December 2010 by another RITA E panel and it was that decision and the decision to withdraw the NTN that were the subject of the appeal to the AP. There had been considerable dispute between the claimant and the Deanery as to the fairness, reliability and objectivity of the assessments and reports considered by each of these 3 successive steps (i.e. the RITA E panels' decisions in October 2009, July 2010 and December 2010). The AP was therefore considering reports and assessments that were, in some instances, both aged and whose objectivity and reliability were in dispute. There was clearly some force in the claimant's challenge to some of these disputed reports and assessments since an earlier AP had set aside the July 2010 RITA E on those grounds.
10. It is therefore not surprising that the AP considered in March 2011 that it could not fairly determine whether the RITA E panel's decision in December 2010 to withdraw the claimant's NTN – and in consequence terminate his lengthy period of Specialist Training and his employment and future employment as a NHS Consultant - was correct. The AP concluded:

"The appeal panel also has significant doubts about the realistic prospect of [the claimant] successfully completing training and reaching a position in which he can undertake independent consultant level practice. This is supported by multiple reports from senior consultants within the training programme, but it is noted that these consultants are all based within a single Trust for the most recent reports. The panel does not doubt the sincerity of opinions expressed in these reports, but feel that it would be valuable to obtain an independent report on the matter in order to fully inform the Postgraduate Dean in his decision. Therefore, the decision to withdraw [the claimant's] NTN is postponed pending consideration of an independent report."

11. Given the background to the appeal and the terms of the jurisdiction of the AP set out in Section 13 of the Orange Book, it is arguable that the AP did not have the jurisdiction to suspend the removal of the claimant's NTN in March 2011. It had been set up to conduct 2 appeals. It heard and dismissed the first RITA E appeal. Using the same material it then considered the second NTN removal appeal. In dealing with the appeal, paragraph 21 of Section 13 states that:

"… the postgraduate dean will convene an appeals committee to hear representations from the trainee, to consider the evidence and form a judgment. …

22. … Trainees should be informed in writing of the outcome of the appeal."

12. Thus, on the face of it, the AP could, and only could, allow the appeal, dismiss it or vary the original decision and conclude the appeal.
13. Moreover, even if the AP had the power to suspend a NTN removal decision pending the obtaining of further assessments and reports, in context that power was inevitably a limited and constrained power. What does not appear to be envisaged by and encompassed within paragraph 21 was a suspension of the decision under appeal to enable a prolonged assessment to be undertaken involving a large multi-disciplined independent assessment team whose assessment processes took 19 months to be concluded to be followed by a continuation of the same appeal process against a removal decision taken 22 months earlier.
14. It is of course true that the procedure set up in the Orange Book envisaged that the AP could "take into account both information available at the time the original decision was made, newly submitted information and the representations of the appellant (i.e. the claimant)". That did not appear to permit what amounts to a complete rehearing of the claimant's entitlement to retain his NTN based largely on assessments over a future 19-month period. Although it is a matter of fact and degree whether new material falls within the ambit of paragraph 9 of Section 13, it is highly arguable that what was commissioned fell well outside the limit of what could reasonably be introduced as new material into the hearing of the appeal.
15. Arguably, the AP in March 2011, when deciding whether the claimant's NTN should be removed and in, considered that that question required a detailed NCAS independent assessment of the claimant's performance and other necessary qualities – a process which would inevitably be lengthy, detailed and on-the-job – should have decided to reinstate the NTN with a recommendation that the 2-stage procedure provided for in section 13 of the Orange Book should be undertaken again. Had that been suggested, the independent assessment would have formed an integral part of that process and, if necessary, a further removal decision could be taken at the end of that process with a further and fresh appeal if the claimant following was subject to a further adverse removal decision. If this be correct, the decision now challenged dated 19 October 2012 would have to be quashed as being made without or in excess of jurisdiction.
16. If the AP did have jurisdiction to suspend the NTN and to direct an independent assessment of the kind carried out by the NCAS, it should have set out the procedure to be followed in March 2011 at the outset of the procedure. It should, for instance, have identified the precise instructions and parameters of the assessment process and the timescale of that assessment. It should also have identified what procedure should follow after the NCAS assessment report was received. No member of the AP should have been involved in the assessment process at any stage. The claimant should have been given a fair opportunity to answer not only the assessment report but also the case for his NTN to be withdrawn and that opportunity should have included the right to address the AP himself or through a representative and to place before the panel any rebutting evidence. Finally, since the assessment process would inevitably be lengthy, it should have been made clear that further evidence of developments in the period since December 2011 could and would be taken account of.
17. These difficulties highlight that the AP was not in truth conducting an appeal from the decision under appeal that had been taken in December 2011 but was, or should have been, taking a fresh decision 20 months later following a lengthy assessment process. It also highlights the obvious fact that the AP did not have the jurisdiction to do what it purported to do in March 2011 and in its subsequent decision-making process and its final decision.
18. Moreover, the claimant was, or was arguably, subject to the following series of actually or potentially unfair procedural steps:

(1) His practice was subject to 17 months of critical assessment without the safeguards usually permitted by the Orange Book before the 2-stage appeal procedure operated and, once it operated, during the first of the mandatory 2 stages provided for in the Orange Book. These safeguards were, it would appear, denied to the claimant in this particular NCAS assessment process.

(2) The appeal process was clearly intended to be a speedy one and was required to focus on the decision under appeal. This process took nearly 2 years to be undertaken and it largely focused on materials and assessments that post-dated the decision under appeal.

(3) The claimant should have been permitted and able to introduce his own evidence, including if he wanted, rebutting expert evidence. It was not sufficient for him to be given an opportunity to provide comments to the NCAS team since that team was merely an advisory team as to issues that the AP would have to consider which were narrower in scope than the overall appeal question it had to consider. This entitlement arose both as a matter of fairness and by virtue of paragraphs 9 and 22 of the Section 13 appeal procedure.

(4) The AP shut out evidence of developments relevant to an assessment of whether the NTN should be withdrawn merely because they had arisen since December 2010. This evidence was, however, on the face of it, highly relevant to the decision as to whether, in October 2012, the claimant's NTN should be withdrawn.

(5) The hearing had not in truth been closed in March 2011. In reality, it had been adjourned to enable the independent assessment to be obtained. Thus, AP should have been afforded the opportunity to address the AP on the new material – indeed given the passage of time, on the case as a whole as it stood in October 2012 – and should have been permitted to continue to be represented at that hearing.

(6) The chairman of the AP blurred his role as the leading member of the AP and as Deputy Postgraduate Dean. In that latter capacity, he met with the assessment team, submitted comments and heard views expressed by the claimant which other members of the AP did not hear. Indeed, once he had decided with his colleagues to appoint the NCAS to conduct the assessment, he should have had no contact with the assessment team save as a member of the AP, as part of the AP's evidence gathering process and in the presence of all of his AP colleagues and the claimant and/or the claimant's representative. If the assessment team wanted input from the Deanery, that input should have come from those who had had and were continuing to have no part to play in the on-going appeal.

19. A quite separate potential complaint is that the AP appears to have decided to award the claimant a RITA E for the period from December 2010 to October 2012. Since it had completed its consideration in March 2011 of the appeal against the October 2010 RITA E decision, it had no jurisdiction to consider that October RITA E decision again. Thus, if the AP intended to award a RITA E for the period after October 2012, it had no jurisdiction to do so since it was an appeal panel and not a RITA panel from whose decisions, if properly constituted, a separate and fresh appeal could be brought. It may be that the AP was intending to do no more than repeat its March 2011 decision in which case its repeat decision is otiose, confusing and without jurisdiction.

Conclusion

20. For all these reasons, the claimant has reasonable prospects of success in obtaining judicial review of the AP's decision of 19 October 2012 on the grounds of lack of jurisdiction, procedural irregularity, illegality, Wednesbury unresonableness and failing to take account of and excluding relevant material that should have been considered.

HH Judge Anthony Thornton QC

9 May 2014