BMA Cymru Wales successfully intervenes in judicial review by Health Board
In a case that has wide-ranging repercussions for all doctors, BMA Cymru Wales has successfully defended a Welsh doctor against an attempted judicial review from their health board.
In an unprecedented move, after refusing to accept the findings of an Upholding Professional Standards (USPW) panel, a health board applied to the High Court for a judicial review of the panel’s decision regarding a BMA member’s employment.
Whilst the case was directly against the panel convened under UPSW, it forced the BMA member to be part of the proceedings as an interested party to defend the panel decision. This created unnecessary stress and anxiety for the doctor, as the outcome would have an impact on their future career.
The move made by the health board was legally inappropriate and threatened to undermine UPSW and destroy the protections it’s designed to give BMA members in Wales. In particular, the claim could have established a new way for employers to overturn UPSW panels, which would considerably impact doctors in Wales in the future.
| ‘…for the reasons set out in the Intervener’s [BMA’s] submissions, I do not consider that the Panel’s decision is susceptible to judicial review. The Panel itself is not a statutory body; although the UPSW is an instrument which is affected by the provisions of the [NHS Wales] 2006 Act (such that the Claimant is required to act in accordance with its terms), there is no realistic argument that the Panel is thereby exercising statutory powers. Rather, the powers exercised concern the contracts of employment of doctors and dentists employed by NHS employers.’ Justice Swift
A win for all
With support from the legal department, BMA Cymru Wales was granted permission to intervene in proceedings with the argument that decisions of the UPSW panel are not capable of being taken to judicial review; the panel plays an important, but limited, role in private employment matters; it does not exercise any public law functions so its decisions can’t be challenged in this way.
Less than two weeks after the intervention, the health board informed the court that they were discontinuing the claim. The proceedings were dismissed, partly for the reasons outlined by Justice Swift above, and the BMA member’s costs will be paid in full by the challenging health board.
This is a tremendous outcome for doctors across Wales, which means the process for individuals and those sitting on panels remains protected.
National Director, Rachel Podolak said: “We’re proud we were able to intervene and help resolve the situation for our member. It will stand as a way of discouraging other health boards from undermining the UPSW inquiry panel in the future, allowing all doctors to continue to undergo a fair process.”
Note: UPSW is the disciplinary policy used to address concerns about capability, performance and conduct for all doctors employed by Local Health Boards or other NHS organisations in Wales.
For further information please contact:
BMA Cymru Wales, Fifth floor, 2 Caspian Point, Caspian Way, Cardiff Bay, Cardiff, CF10 4DQ
Telephone: 029 2047 4626
Mobile: 07500 765994
Email: Carla Murphy ([email protected])