7th July, 2023

Withdrawal of right of appeal?

The King (On the Application of Dr. Mark Tattersall) v NHS England [2023] EWHC 1677 (Admin)

The Claimant post-graduate former trainee doctor issued proceedings by way of judicial review. The target of the challenge was a decision by Health Education England (HEE) to withdraw a right of appeal under the Gold Guide. By the time of the hearing, the role of HEE had been transferred to the Defendant. Amongst other things, the Defendant relied upon the time limits created by the Gold Guide (v8) and what it contended was the failure of the Claimant to collaborate in the progress or resolution of the appeal itself.

The Claimant contended that the obstruction was on the part of the Defendant and its failure to accommodate his own difficulties, disability, and health related requirements. He also sought to persuade the Court that the provisions of the Gold Guide were unlawful, contrary to his convention rights and manifestly unfair; depriving him of a legitimate expectation of a procedural and substantive kind.

Following the formulation and adoption of ground rules and the resolution of issues of capacity, the Court heard detailed submissions over two days. In dismissing the claims, Fordham J carefully examined the factual history of the long-running dispute. Having done so, he rejected the suggestion that the Gold Guide provisions were unlawful.

As to the decision itself, he observed: "The Curtailment Provision required consideration of whether there had been reasonable endeavours to progress the Appeal - Dr Tattersall's contention - that HEE had not made reasonable attempts to progress the Appeal in a timely fashion was unfounded. The detailed sequence of events that I have set out reflects repeated, conscientious and transparent attempts to bring the appeal to a conclusion."

The claim was dismissed with costs. Ed Morgan KC appeared on behalf of the Defendant (Instructed by Hill Dickinson).

The full judgment may be accessed here.

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