AC-2024-LON-003354 - [2025] EWHC 2270 (Admin)

The first is concerned with whether the decision under review is capable of being justified or whether in the classic Wednesbury formulation it is “so unreasonable that no reasonable authority could ever have come to it”: see Associated Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, 233-4. Another, simpler formulation of the test is whether the decision is outside the range of reasonable decisions open to the decision-maker: see e.g. Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143, 175.

The second aspect of irrationality/unreasonableness is concerned with the process by which the decision was reached. As explained by Chamberlain J in R (on the application of KP) v Secretary of State for Foreign Commonwealth and Development Affairs [2025] EWHC 370 (Admin), process rationality includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones; and that the process of reasoning should contain no logical error or critical gap.

Many of the claimants’ submissions both in writing (in the pleaded claim) and oral submissions are not tied to any particular legal issue. The initial focus of the SFG was upon the defence advanced in pre-action correspondence that the defendant did not have the power under the 2024 Order to impose limits on practice. For both of these reasons, understanding the current claim, as expressed in the SFG at least, is more difficult. However, the claimants’ case, namely, that the defendant’s exercise of its regulatory powers in the 2024 Order was irrational and hollow given its adoption of the “medical model” of regulation and in the face of the emerging evidence from different sources of the risks posed by associates is sufficiently pleaded. The SFG sets out the complaint of inadequate regulatory response within the context of a factual matrix which refers to the perception by doctors and others of the risks posed by associates; the circumstances of the deaths of Emily Chesterton and Susan Pollitt; the role of the Royal Colleges and the role of employing Trusts. The defendant could not have been in doubt that the challenge it faced in this judicial review was to the outcome of its reasoning process but also that the challenge extended to how it had arrived at that conclusion given its approach to regulation generally and the body of evidence of patient safety risk. No doubt this is the reason for the statements from Professor Melville which set out, chronologically, the defendant’s preparation for associate regulation, the work of the MAPS programme and its extensive consultation processes. How the end point (or current state of affairs) was reached and the underlying reasoning are covered in over 150 paragraphs in Professor Melville’s first statement and then amplified (and re-emphasised) in 120 odd paragraphs in his second witness statement.

There is an element of artificiality to the argument that process irrationality is not in issue in this case. Any rationality challenge logically involves some engagement with the process by which it was arrived at, as explained by Saini J in this Court in R (Wells) v Parole Board [2019] EWHC 2710 (Admin). He described an alternative formulation of the approach to a rationality challenge in this way:

I agree with Mr Dunlop that Bibi is binding upon me and that procedural rigour is essential. But this is not a case (such as Bibi) in which a wholly new ground of challenge is advanced in the absence of an application to amend or in which the case at hearing bears no relationship with the pleaded case. As stated in R v Secretary of State for the Home Department ex p. Oladehinde [1990] 1 AC 254 at 280E, per Lord Donaldson MR, “it would be a mistake to approach the judicial review jurisdiction as if it consisted of a series of entirely separate boxes into which judges dipped as occasion demanded”. Here the ground of challenge, namely irrationality, is clearly set out in the SFG. Nor do I find that the fact that this is a challenge to an ongoing situation or, as alleged, a continuing failure to implement a safe system of regulation must therefore mean, as Mr Dunlop suggests, that the challenge can only be to outcome and not process. I see no reason why an ongoing situation which is said to be irrational may not be due to ongoing procedural defects or failures which are, in turn, said to be irrational

In any event, given the evidence before the court from Professor Melville, there is no unfairness to the defendant in the case being litigated on the basis of both a process and outcome rationality challenge. Although Mr Dunlop submits that he is disadvantaged in dealing with a process challenge in that he would have served further evidence dealing with specific aspects of the decision, he did not set out what that evidence would have covered. Nor is it clear to me, given Professor Melville’s comprehensive statements, what further areas could be covered in supplemental witness evidence