The defendant had the function of commissioning specified healthcare services for rare and very rare conditions, including gender identity development services for children and adolescents (“children’s GID services”) and gender identity disorder services for adults (“adults’ GID services”). The demand for GIDS services increased substantially but capacity did not keep up with the demand, resulting in very long waiting times for the children and adults referred for such services. The first and second claimants were children who had waited for, respectively, 18 months and nearly three years for a first appointment after being referred to GIDS. The third and fourth claimants, who were adults, had waited for more than two years and four years respectively. By a claim for judicial review the claimants challenged the defendant’s delay in providing GIDs on the basis that, inter alia, it breached statutory duties under: regulation 45 of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, which required it to ensure that 92% of NHS patients referred for the services it commissioned had commenced appropriate treatment within 18 weeks of referral. The judge found that the duty under regulation 45 was a target duty, the regulation did not regard failure to achieve the 18 week standard, without more, a breach of the duty and therefore dismissed the claim. The claimants appealed.
On the appeal—
Held, appeal dismissed. On a true construction, the duty in regulation 45 of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 was a target duty, that was to say a duty to make arrangements with a view to meeting the waiting time standard, not a duty to achieve it. Regulation 45(3) did not say that the defendant “must ensure” the waiting time. It could not have achieved a waiting time standard itself by the provision of services, but only by making arrangements designed to achieve it through the provision of services by others. Whether those arrangements did in fact achieve it was not in the defendant’s hands. There were many vicissitudes which might have precluded the result being achieved which were beyond the defendant’s control; nor could the defendant reasonably anticipate their occurrence, severity or impact on waiting times. They included, by way of example only: increased demand in the number of patients requiring particular services; the need to reorganise services with a view to better patient provision; shortages of staff qualified in the particular specialism required for the services; unwillingness of those with sufficient qualifications to be involved in particular activities; strikes by hospital doctors, nurses or other staff or providers of services; unavailability, or interruption in supply, of medicines or equipment; and the effect of new research on treatment methods requiring changes in practices. The impact of those and no doubt other factors would have often been beyond the defendant’s control. Problems such as these were not preventable or remediable simply by reference to allocation of resources by the defendant between competing demands. The Secretary of State could not have intended to impose upon the defendant an absolute duty which it might have been unable to fulfil through no fault of its own by reason of factors inherent in the nature of provision of a healthcare system. Furthermore, the regulation 45(3) duty was owed to the population as a whole rather than to any individual. A general duty to the population, not enforceable as an individual duty, was a paradigm characteristic of a target duty as distinct from an absolute duty (paras 43, 47, 48, 49, 51–52, 97, 98).
Per curiam. The cohort to whom the duty is owed under regulation 45 of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 is restricted to those referred for consultant-led treatment (para 96, 97, 98).
Thomas De La Mare KC and Jason Pobjoy (instructed by Rook Irwin Sweeney LLP) for the claimants.
Eleanor Grey KC (instructed by Blake Morgan LLP) for the defendant.