Question
Topic: Law Problem Scenario Coursework – Questions Judicial Review
Description:
Consti and Admin Law. This is a problem scenario questions coursework – based on Judicial Review. There is no requirement on words quantity needed.
Assessment 3 Questions
Please read the problem scenario below first, and then ensure that you answer the following questions when completing your submission (THE SPECIFIC QUESTIONS ARE LISTED ON PAGES 3-4). All students are also advised to carefully read the Learning Materials for Weeks 20-24 inclusive. Write all answers in full sentences!!!
PROBLEM SCENARIO:
Assume that the Health Services Act 2017 empowers health authorities and NHS Trusts to offer revolutionary new treatment to elderly people suffering from life threatening illnesses. The Act further provides that any decision of a local health authority or NHS Trust shall be final.
Henry is sixty-six years old and suffers from lung cancer. He has been told by his doctors that he is an ideal candidate for a new treatment regime and that this would give him a life expectancy of up to ten years. He is upset when Boldwood NHS Trust refuses to authorise the treatment. In a letter explaining the decision, Boldwood NHS Trust says that it has been swamped by similar requests and that, for financial reasons, it is carefully screening applicants. The letter also explains that the decision was reached on the basis that Henry is a prominent supporter of the National Front (a far-right extremist political party in the UK), and that Boldwood NHS Trust did not want to provide treatment to him as it might be seen as providing implicit support for this political organisation.
Henry takes the letter to the Health Action Group, a well-established charity seeking to provide support and guidance for those with serious health problems. They are very concerned that this decision could have adverse consequences for their members if other local health authorities and NHS trusts adopt the same policy, namely to screen patients based on their political views.
Henry asks for legal advice on his position – he is keen to know if he has any legal avenues available to get Boldwood NHS Trust to reverse their decision.
Assessment 3 Coursework – Questions:
1) (Worth 10 marks in total)
a) Identify the parties to any legal action that may arise from the problem scenario (the claimant/s and the defendant) – 4 marks
b) Identify and define the cause of action in this case (in other words, define Judicial Review, in your own words) – 3 marks
c) Does the final sentence in the first paragraph of the problem scenario affect your advice on the most appropriate legal path? If not then why? – 3 marks
2) (Worth 10 marks)
In order to make a Judicial Review claim, two initial conditions must be satisfied – the defendant must be a public body, and the issue must be a public law matter.
a) Define what is meant by the term ‘public body’. – 2 marks
b) Is the defendant a public body, and if so, why? – 4 marks
c) Is the issue in this claim a public law matter, and if so, why? – 4 marks
3) (Worth 15 marks)
a) Define who has the (general) right to claim under JR. – 4 marks
b) Does Henry have the right to make a JR claim, and if so, why? – 4 marks
c) Does Health Action have the right to participate in the claim, and if so, why? – 4 marks
d) Discuss the relevance of the Greenpeace (R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No. 2) [1994]) case to the right to claim in this instance – 3 marks
4) (Worth 10 marks)
a) In Weeks 21 and 22, we discussed the various policy reasons (non-justiciable issues) that might result in the courts not being prepared to consider a JR claim. Briefly summarise what these policy reasons/non-justiciable matters were. – 6 marks
b) Which one of these policy reasons is likely to be relevant in Henry’s case, and why? – 4 marks
5) (Worth 10 marks)
Summarise, in your own words, the basic procedure involved in making a JR claim (see Week 22). – 10 marks
6) (Worth 30 marks)
a) In Weeks 23 and 24, we discussed the grounds for Judicial Review. Identify and briefly explain these three grounds, in your own words. – 15 marks in total, 5 marks per ground.
b) Of these three grounds, identify one which you believe is relevant to Henry’s case. Explain why this particular ground you have chosen is relevant, and use case law to justify your choice. Is the ground you have chosen a strong ground? – 15 marks
7) (Worth 10 marks)
a) Identify and define the 6 remedies that are available under Judicial Review, in your own words. – 6 marks
b) Of these 6 remedies, which one would you advise is the most relevant in this case? – 4 marks
8) (Worth 5 marks)
What is the chance of success of this claim (high, low, 50/50)? Justify/explain the rationale for this opinion. – 5 marks
Answer
Case Law
1) (Worth ten marks in total)
a) Identify the parties to any legal action that may arise from the problem scenario (the claimant/s and the defendant)
In the legal tackle, three parties may be affected by the claimant scenario. Suppose Henry decides to take legal action in reversing the ruling of Boldwood NHS Trust. Over the case, he will be the claimant, while the Boldwood NHS Trust will be the defendant. Additionally, Henry can also sue Health Action Group for denying him healthcare services.
b) Identify and define the cause of action in this case (in other words, define Judicial Review, in your own words
The cause of action in the scenario is to examine the legality of the NHS Trust in denying a person access to health based on political affiliation. Even though the organization is given the authority to make decisions to finality concerning health issues, what are the legal boundaries and principles that guide the authority’s decisions?
c) Does the final sentence in the first paragraph of the problem scenario affect your advice on the most appropriate legal path? If not, then why?
Yes, the statement affects the advice for the most appropriate path. The patient should seek to understand the limits of the application of “any” within the powers of the authority.
2) (Worth 10 marks)
a) Define what is meant by the term ‘public body.
A public body is a governmental organization that carries out tasks in the public interest and is governed by public law[1]
b) Is the defendant a public body, and if so, why?
The defendant is a public body because the organization has been given the authority to carry out tasks and make decisions in the public interest. For example, the organization has been given the responsibility to decide the treatment of elderly people suffering from a life-threatening illness.
c) Is the issue in this claim a public law matter, and if so, why?
The issue in the claim is a public law matter that requires the intervention of the courts in interpreting how the provision of services based on political affiliations is in the interest of the public and within the public law.
3) (Worth 15 marks)
a) Define who has the (general) right to claim under JR.
The general public has the general right to claim under judicial review because the public body should rule in the public interest and according to the public law. If there are any changes to the authority given to the body, the decision should consider the public interest.
b) Does Henry have the right to make a JR claim, and if so, why?
Henry has a right to make a judicial review claim because he is a member of the public and a citizen who has all rights given to request any legal interpretation and fair application of the public law.
c) Does Health Action have the right to participate in the claim, and if so, why?
Health Action has the right to participate in the claim because the decision made by the defendant affects its mission and is against the healthcare principles. The authority’s decision to deny Henry treatment on the basis of political affiliation is likely to affect the members of the charity organization who may be allied to the same party as Henry.
d) Discuss the relevance of the Greenpeace (R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No. 2) [1994]) case to the right to claim in this instance
Greenpeace case focused on the public’s general well-being through the protection of the people from radioactive waves. In this case, the claimants have the right to claim because the defendant does not indicate how the decision is for the public’s interest.
4) (Worth 10 marks)
a) In Weeks 21 and 22, we discussed the various policy reasons (non-justiciable issues) that might result in the courts not being prepared to consider a JR claim. Briefly summarise what these policy reasons/non-justiciable matters were. – 6 marks
Various policy reasons may lead to the non-justification of the judicial review. If the claim is an advisory opinion requiring a nonbinding interpretation of a legal topic, then the federal court may not adjudicate[2]. The standing is another reason why the court may fail to adjudicate the issue when there are no identified harms caused on the plaintiff by the defendant. Third, the ripeness of a case determines the viability of a case, and a court will not adjudicate an issue that is not yet controversial. A court will also not adjudicate a claim that is moot that has already been resolved. Finally, under the political question doctrine, a court will not hear a claim or a politically charged issue[3].
b) Which one of these policy reasons is likely to be relevant in Henry’s case, and why?
The Standing reason is likely to be relevant in Henry’s case because he has been denied access to healthcare services despite qualifying for the treatment.
5) (Worth 10 marks)
Summarise, in your own words, the basic procedure involved in making a JR claim (see Week 22).
In presenting a JR claim, the claimant should first cross-check the claim’s viability before presenting it before the court. The claim must not be more than three months old after the eruption of the case. The checklist ensures that the legal presentation made is fit and justifiable for adjudication in the court. Next, the claimant should write a letter to the defendant before filing the claim to persuade the body to consider the grievances. The letter should bear the correct descriptions, including the challenges and details of the dispute. The body then sends a reply letter that informs the claimant of the issue. Next, the claimant should look at the strong evidence that may weaken the claim. The claimant then should draft the claim after a conclusive consideration of the letters. The claimant then applies for the claim at the court’s administrative office, after which the office sends a reply for consideration or denial.
6) (Worth 30 marks)
a) In Weeks 23 and 24, we discussed the grounds for Judicial Review. Identify and briefly explain these three grounds in your own words. – 15 marks in total, five marks per ground.
There are three main grounds for a judicial review. First, the grounds of illegality overturn the decision-maker’s ruling based on lacking of the legal power to make the decision. This shows that if the defendant decided against the claimant beyond the stipulated legal mandate, then the decision is liable to be overturned by the court.
The court can also overturn a decision on the grounds of irrationality. The reason for irrationality means that the decision made was not rational and that no rational person would make such a decision. This is a decision without reason that may be termed as inapplicable and wrong. If a decision is made against the normal order of reasoning, then the decision is bound to be overturned.
A court of law can overturn a decision based on incompatibility with human rights provided in the Human Rights Act. This shows that the decision should be compatible with human rights for the claim to be canceled. If a decision threatens life, freedom of speech, or association of a person, then it is bound to be overturned by the court of law. The exception of these grounds is when the parliament ordered the public body to do so.
b) Of these three grounds, identify the one you believe is relevant to Henry’s case. Explain why this particular ground you have chosen is relevant, and use case law to justify your choice. Is the ground you have chosen a strong ground? – 15 marks
The grounds of incompatibility to human rights is the one that I believe is relevant to Henry’s case. Everyone has a right to association and should not be denied public services based on political affiliation or stance. Everyone has a right to an opinion, and thus, Henry has a right to choose the political wing to support and provide personal opinions in support of the party ideologies. From the case, the public body is not mandated by the parliament to only offer services to the members-only allied to the ruling party. In Australia, the court of law overturned a decision by the Ministry of Home Affairs to detain a 68-year immigrant with multiple health conditions. According to the court’s decision, the public authority risked the life of the elderly person by exposing him to COVID-19 infections[4]. The decision by the Boldwood NHS Trust is thus against Henry’s rights to life, to an association, and the right quality care.
7) (Worth 10 marks)
a) Identify and define the six remedies that are available under Judicial Review in your own words. – 6 marks
There are various remedies available under judicial review. First, the quashing order remedy nullifies the public body’s decision. The second remedy is the prohibiting order that prohibits the body from acting beyond its mandated powers. The third remedy is a mandatory order that requires the public body to fulfill a particular legal duty and is punishable under contempt of the court order. A declaration remedy involves the definition of roles and boundaries of the mandate of each party. The injunction is a judicial review remedy that calls the public body to act with respect to the public law. The sixth remedy is damages which involve the compensation of any form of damages by a public body.
b) Of these six remedies, which one would you advise is the most relevant in this case?
The remedy that I would advise as the most relevant is the quashing order remedy that nullifies the decision to deny Henry, access to healthcare over his affiliation to a particular political party. The public body may have acted unlawfully, but this does not mean that the claimant is guaranteed compensation. Calling for the nullification of the decision would give Henry an opportunity to be treated through the body or another charity organization within the local region.
8) (Worth 5 marks)
What is the chance of success of this claim (high, low, 50/50)? Justify/explain the rationale for this opinion. – 5 marks
The chance of success for the claim is high because the decision made by the public body is not within the mandate of the organization. The organization is given the authority to make decisions on health services provision but instead acts outside the powers by being partisans in politics. The main reason for denying Henry access to the treatment program was that he was an active supporter of a particular political party that is against human rights.
References
Cali, B. (2017). International judicial review. In Handbook on global constitutionalism. Edward Elgar Publishing.
Cornell Law School. (2019). Justiciability. Legal Information Institute. https://www.law.cornell.edu/wex/justiciability
HRLC. (2021, March 19). Human Rights Case Summaries. Human Rights Law Centre. https://www.hrlc.org.au/human-rights-case-summaries
The Research Council of Norway. (2019). Definition Public Body. https://www.forskningsradet.no/en/apply-for-funding/who-can-apply-for-funding/public-sector/definisjon-pa-offentlig-sektor/
[1] The Research Council of Norway. (2019). Definition Public Body. https://www.forskningsradet.no/en/apply-for-funding/who-can-apply-for-funding/public-sector/definisjon-pa-offentlig-sektor/
[2] Cali, B. (2017). International judicial review. In Handbook on global constitutionalism. Edward Elgar Publishing.
[3] Cornell Law School. (2019). Justiciability. Legal Information Institute. https://www.law.cornell.edu/wex/justiciability
[4] HRLC. (2021, March 19). Human Rights Case Summaries. Human Rights Law Centre. https://www.hrlc.org.au/human-rights-case-summaries