Public Law and Judicial Review for the NHS

We act for NHS commissioners and providers as well as professional regulators, advising on their powers and duties and defending challenges to their decisions by way of judicial review claims.   

Our recent experience includes:

  • Acting for an NHS Trust in a judicial review claim arising from the decision to designate a hospital site as a Covid-free “Green” site during the pandemic;  
  • Acting for an ICB in respect of a judicial review claim in which it was argued that the designation of Hyper Acute Stroke Centres within the ICB’s area had failed to take account of the duty to reduce inequalities;
  • Acting for various NHS commissioners and providers in disputes in respect of the funding and delivery of complex care packages under the Continuing Healthcare framework and s,117 of the Mental Health Act.   

Our in-depth understanding of the legal and regulatory frameworks that apply to your organisation mean we can “hit the ground running” when dealing with urgent and complex issues.

We adopt a pragmatic problem-solving approach aimed at reducing the risk that your decisions will be challenged.

We have a strong track record of successfully defending our clients in judicial review claims. We have acted in more than 30 judicial reviews in the last year.

Our costs in judicial review cases are consistently lower than those of the other firms we come across.

How Capsticks can help?

  • Robust decision-making

    We review board papers and resolutions, and produce checklists so that decision-makers can demonstrate that they have taken account of all relevant considerations and legal duties. Once decisions have been made, we will help you to draft decision letters in order to comply with the public law requirement to give reasons.

  • Responding to pre-action letters

    If you receive pre-action correspondence threatening judicial review, we will draft letters of response under the Judicial Review Pre-Action Protocol to help you to head off a potential legal claim. If our initial analysis suggests that there may have been flaws in the original decision-making we will alert you to this so that you can consider alternatives to litigation.

  • Defending judicial review claims

    We regularly represent NHS bodies in the Administrative Court and Court of Appeal and have a strong track record of successfully defending judicial review claims. Many of the judicial reviews that we defend are dismissed at the permission stage which avoids the costs and time commitment needed for a full hearing. By providing swift and rigorous analysis and, where appropriate, a robust response to public law challenges we will best protect both:

    • The delivery of your strategic objectives, by ensuring that your decisions are upheld when subject to judicial scrutiny; and

    The protection of your reputation, by ensuring the consistent presentation of your position to courts and other stakeholders, and the cost-effective delivery of responses to challenge.

  • Functions, powers and duties

    Capsticks has many years’ experience of the legal framework under which NHS bodies operate and can advise on the exercise of your functions; the extent of your statutory powers and the application of legal duties including the Public Sector Equality Duty. We regularly provide assurance to NHS boards that they are not acting ultra vires and that their decisions are consistent with public law principles.

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