England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		25 March 2015

1. MR JUSTICE JEREMY BAKER: This is the renewed application for permission to judicially review the lawfulness of certain of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, permission having been refused by Hayden J on 11 March 2015, those regulations being provided for under section 20 of the Health and Social Care Act 2008.
2. The original application sought to challenge the 2014 regulations on two bases:
3. Firstly, that the application of the regulations was uncertain, and secondly, that their effect was retrospective. The second ground is no longer pursued. However, the first ground is pursued and to any extent necessary a certificate of incompatibility is sought.
4. The regulations were the Government's response to concerns as to the standard of care and its regulation within the health and social care sector, highlighted in a series of investigations and reports, including that of Sir Robert Francis QC, into the failings at Mid Staffordshire NHS Foundation Trust.
5. In his report, Sir Robert Francis had set out fundamentals of care which he considered were the minimum standards which ought to be provided in any regulated health and social care system. The Government decided to adopt this approach in sections 1 and 2 of part 3 of the 2014 regulations, which set out the requirements relating to persons carrying on or managing regulated activity.
6. In particular, the fundamental standards are set out between regulations 9 and 19 which, by regulation 8, are ones which a registered person must comply with in carrying on a regulated activity. The consequences of non-compliance may give rise to sanctions, including cancellation of registration (the latter being a prerequisite to the lawful provision of such care) and in certain circumstances render the person in default liable to criminal proceedings.
7. The claimant does not challenge the lawfulness of the majority of the regulations in Part 2. Only those which, after setting out the standard in paragraph 1 of the regulation, proceeds to set out those things which a registered person is required to do in order to comply with the particular standard, the regulations in question being regulations 9, 10, 12 and 17.
8. Those regulations provide "person-centered care",
9. "dignity and respect", "self care and treatment", and
10. "good governance".
11. His argument is based on the inclusion within each of those regulations of the following words in a subsidiary paragraph, namely:

i. "Without limiting paragraph (1), the things which a registered person is required to do to comply with paragraph (1) include in particular -- "

12. In relation to the list of things which a registered person is required to do in order to comply with the particular standard.
13. It is argued that by not limiting the things which are required to be done by a registered person, compliance with the particular standard is thereby rendered uncertain.
14. Undoubtedly, it is a fundamental principle that the law has to be sufficiently certain, see Kokkinakis v Greece (1993)17 EHRR 397, the more so, the more serious the consequences of the breach of any statutory regulation.
15. It is clear that the standard within each of the regulations 9 to 19 inclusive is that set out in paragraph 1 of the particular regulation. It is of note that the claimant does not seek to challenge that the standard itself is anything but clear and certain, otherwise he would no doubt be contesting the legality of the other regulations under section 2, which he has not sought to do.
16. However, as the standards set out in the regulations are defined in broad terms, it is apparent that the legislative have sought to provide those required to consider the effect of the regulations with assistance, in relation to their application; in the sense of providing examples of behaviour to which a registered person must conform, in order to achieve compliance with the particular standard to which those exemplars are provided.
17. The matters set out in the following paragraphs are only examples and by their nature not designed to be comprehensive or comprise a closed list. However, the fact that these behaviours do not comprise a closed list does not render the standard itself unclear.
18. Although it may be persuasive that compliance with the standard has been achieved where the circumstances of a particular case exhibit conformity with one or more of the exemplars, that will not necessarily follow.
19. However, the fact that such conformity may not necessarily achieve compliance with the requisite standard does not render the regulations legally uncertain. It is compliance with the fundamental standard set out in the first paragraph of each of the regulations in part 2 which has to be achieved, those standards being set out in clear and unambiguous language.
20. Moreover, not only is it clear from the source of the material from which these standards have been obtained, namely Sir Robert Francis' report, that they are minimum standards, but, as was recognised by the care quality submission in their consultation paper, "a new start."

i. "Anyone should be able to recognise a breach of the fundamentals of care, even in the absence of specific guidance."

21. A matter which, in my judgment, has been achieved by those responsible for drafting part 2 of the 2014 regulations.
22. I have, of course, taken into account that non-compliance with the standards set out in the regulations may render the registered person liable to have their registration cancelled, and thus adversely affect their professional reputation and livelihoods. Moreover, that regulations 22 provide that non-compliance with certain of those standards, coupled with the establishment of a significant risk of avoidable harm, may render a registered person liable for criminal prosecution and conviction. Therefore, I recognise that there is an enhanced requirement for both clarity and certainty in relation to the interpretation of these regulations.
23. However, in my judgment, these regulations are sufficiently certain, in particular, the certainty of the fundamental standards of care themselves are not rendered any the less so by the provision of the non-exhaustive list of exemplars in the challenged regulations.
24. In the course of oral submissions, the claimant conceded that the enormous variety of circumstances which may pertain in relation to situations arising out of the provision of health and social care are such that it would, in reality, be impossible to provide an exhaustive list of examples.
25. However, the claimant, whilst acknowledging this matter, submits that the solution which has sought to be achieved by the legislature in providing a non-exhaustive list of examples in relation to certain of the regulations is not one that this court should consider appropriate, and that the appropriate solution would be for such a list to be provided by way of statutory guidance.
26. In my judgment, that is not a difference which is material, and the fact that the legislature have sought to provide such a list within the regulations (as opposed to by way of statutory guidance) does not, in my judgment, affect the clarity and certainty of the fundamental standards which are set out in paragraph 1 of each of the challenged regulations.
27. In these circumstances, the ground relied upon by the claimant is unarguable and this renewed application for permission must fail.
28. In view of my decision as to the certainty of these regulations it is apparent that the application's ground would not be advanced by the provision of any of the requested disclosure, and the application for the statement of incompatibility is unnecessary.
29. I would only add that although I have some doubts as to the standing of the claimant in these proceedings, for the reasons set out in the defendant's skeleton argument, in the absence of full argument, and in view of the failure of this application on the main ground, this is not a matter which falls for determination.
30. Finally, the claimant also applied for a protected costs order. Not only has he failed to provide the the necessary evidential material in relation to this application, it is also apparent from his arguments in support of his assertion of standing in these proceedings that he may have a private interest in the outcome of the case. In these circumstances, without having to consider whether the issues raised are of general public importance which it is in the public interest to resolve, the application for the costs order also fails.
31. MISS REEVES: My Lord, in those circumstances where permission has been refused, the defendant seeks an order that the claimant pay the costs, based in respect of the acknowledgment of service. In respect of the permission hearing today, it is the effectively the defendant's position that the application has been an unarguable one and in those circumstances it would justify effectively all of the costs.
32. MR JUSTICE JEREMY BAKER: Do you have a costs breakdown?
33. MISS REEVES: Yes. Do you have a copy of the costs schedule, my Lord?
34. MR JUSTICE JEREMY BAKER: No, I do not. (Handed) Thank you very much. What are the costs of the acknowledgment of service, as opposed to costs of today?
35. MISS REEVES: The costs of the acknowledgment of service are set out on the final page, my Lord, in row three, £704.00.
36. MR JUSTICE JEREMY BAKER: Yes, and the total costs of today, inclusive of that figure, are set out at the bottom of the page, is that correct?
37. MISS REEVES: Those are the drafting costs. So the total costs, my Lord, are the page before, at £3,388.00.
38. MR JUSTICE JEREMY BAKER: Yes. Thank you very much. Is there anything you want to say about this, Dr Fairburn?
39. THE CLAIMANT: Very little I can say, my Lord. I should wish to consider an appeal against your decision and against the costs order, assuming that that is possible within the rules.
40. MR JUSTICE JEREMY BAKER: I will grant the application for costs, but it is going to be limited in these circumstances to the acknowledgment of service, which is £704.00.
41. MISS REEVES: So be it, my Lord.
42. MR JUSTICE JEREMY BAKER: Dr Fairburn and Miss Reeves, thank you very much for your assistance.