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

In exercising a discretionary power, a decision-maker has a duty to take reasonable steps to acquaint itself with the relevant information needed to enable it to answer the question which it has to answer: R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] 1 WLR 5765, [2019] EWCA Civ 1020, [58] (citing Tameside Metropolitan Borough Council [1977] AC 1014, 1065). The Tameside duty of inquiry is a distinct ground of rationality which requires the decision-maker to have made sufficient factual enquiries as to factors relevant to the problem(s) which it seeks to address by exercising its powers. The test to be applied was set out by the Divisional Court in R (Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (Admin), [139] as: “Could a rational decision-maker, in this statutory context, take this decision without considering these particular facts or factors?”

The relevant principles in relation to the Tameside duty of inquiry were summarised by the Divisional Court in Plantagenet Alliance (later cited with approval by the Court of Appeal in Balajigari v SSHD [2019] EWCA Civ 673). As the Divisional Court explained:

“1.

The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable.

2.

Subject to a Wednesbury challenge, it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken (R(Khatun) v Newham LBC [2005] QB 37 at paragraph [35], per Laws LJ).

3.

The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision (per Neill LJ in R (Bayani) v. Kensington and Chelsea Royal LBC (1990) 22 HLR 406).

4.

The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient (per Schiemann J in R (Costello) v Nottingham City Council (1989) 21 HLR 301; cited with approval by Laws LJ in (R(Khatun) v Newham LBC (supra) at paragraph [35]).

5.

The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State's duty so to inform himself as to arrive at a rational conclusion (per Laws LJ in (R (London Borough of Southwark) v Secretary of State for Education (supra) at page 323D).

6.

The wider the discretion conferred on the Secretary of State, the more important it must be that he has all relevant material to enable him properly to exercise it (R (Venables) v Secretary of State for the Home Department [1998] AC 407 at 466G).”

The Divisional Court also explained that ‘the Tameside information must be of such importance, or centrality, that its absence renders the decision irrational’ ([139]).

I find that, when considering the regulatory approach to be implemented when exercising its powers under the 2024 Order, the defendant needed to bear in mind the overarching objective in the MA 1983 (as well as the subsidiary statutory objectives in both of those enactments). It is common ground between the parties that the objective of protecting, promoting and maintaining public safety, health and well-being included considering the risks which are or were posed by associates. I agree with Mr Dunlop, however, that that was only one part of the inquiry, and the defendant would also have been required under the overarching objective of protection of the public to consider the bigger picture of evolving healthcare provision in the UK, and in particular how best to accommodate the development of the associate roles.

I turn to consider the information which was available to the defendant when deciding upon its regulatory approach. Preparatory work began as early as October 2019 and continued on into 2024 (and work is still ongoing on the revalidation system). During that period, as explained by Professor Melville in his witness statements, the defendant undertook extensive work including literature reviews, engaging with other stakeholders and healthcare regulators, holding meetings with its EAG and Advisory Forum, the COI survey, discussions with focus groups, and two public consultations on the amended GMP and the guidance for PAs respectively. The defendant accordingly had before it the following information (although I do not suggest this to be an exhaustive list):

The defendant was aware of the risks which the claimants argue it should have looked into. Thus the claimants’ submission, properly understood, is that the defendant ought to have gone further in assessing issues arising at the local/employer level. It may very well have been desirable for it to do so – but the question of the matter and intensity of the inquiry to be undertaken was a matter for the defendant to decide, subject only to the threshold of Wednesbury unreasonableness.

Stepping back, the question which this court must ask itself is whether a reasonable decision-maker in the defendant’s position, with the information that it had available to it, could have decided upon adopting the regulatory approach that it did. I have little hesitation in answering that question in the affirmative. The defendant embarked on an extensive research program to inform the development of its professional standards and guidance to be applied to associates. That what was required of it under the 2024 Order. I do not consider that the failure to inquire further about the situation ‘on the ground’ comes anywhere close to rendering its chosen regulatory approach irrational.