NHS Homeopathy #5 - Update of British Homeopathic Association's Judicial Review Application

The British Homeopathy Association (BHA) now have a date for the Judicial Review and have launched a second crowd funding campaign. A statement on their website says -

We are launching the second part of our campaign to help fund the legal fees for our judicial review hearing which has been set for 1 May. Your support will help make NHS England more accountable, defend patient choice and, more importantly, ensure patients have genuine input on their access to cost-effective healthcare they use and need – in this case HOMEOPATHY!

Actually...
That part of the statement is somewhat misleading. 

For one thing, as a previous post made very clear, there are not that many GP surgeries that that routinely prescribe homeopathic medicines and the majority of GPs that do so would seem to offer Anthroposophic medicine and likely are responsible for the majority of prescribing of herbal medicines as well. Anthoposophic medicine is viewed by its adherents as different from homeopathy and is steeped in esotericism in a way that homeopathy practiced by the likes members of the Faculty of Homeopathy generally isn't. Whether patients of these GPs or supporters of the BHA realise they are essentially supporting mystical doctors with very strange ideas is unknown but seems very unlikely. A discussion of Anthroposophic medicine is beyond the scope of this post but it has very strange ideas about diseases being essential to the "spiritual development" of children and advocates against vaccination and is implicated in various measles outbreaks.

The statement contains a link to the second crowd funding campaign which only near the very bottom states -

We have been granted a 'rolled up' hearing where the grounds for permission to bring the judicial review and the case will be heard at one time. This will be May 1-3, 2018 in the Administrative Court at the Royal Courts of Justice in London.

This is incorrect. The presiding judge will consider in camera the written application of the BHA's solicitors along with written submissions from NHS England's solicitors.The hearing can commence immediately if the judge accepts the application. It might be assumed that a "rolled up" hearing is only granted on the basis that the application is likely to succeed. They can be granted on the basis of urgency, complexity and also cost. If permission is granted, an immediate hearing after would potentially save costs but if permission is not granted then solicitors have done a lot of work in vain and barristers have been retained for no purpose.

Is permission likely to be granted?
It is difficult to say. Many potential applications for judicial review end up falling by the wayside before a judge even looks at the submission. Solicitors will advice clients that they simply do not have a case. It is unknown what exact advice the BHA would have been given but their solicitors should have told them that the majority of submissions are rejected.

The grounds on which application for judicial review discussed to some degree in this post. It raised the issue of "standing" but did not go into much detail - it assumed that readers would follow the links etc. It merits greater discussion. Much as it may annoy some, not just anyone can apply for judicial review simply because they disagree with the decision of a public body. Those that are considered to have "standing" are persons directly affected by the decision (or lack of decision). In English law, "person" has a broader meaning than individual human being - there is the concept of the "legal person" that applies to organisations. Trade unions have made applications representing their members. Groups that protect or campaign for certain public interests have been granted applications as well. Amnesty International have for example.

But does the BHA have "standing"? The BHA is both a registered charity and limited company (the latter is not unusual for charities and does not signify anything in itself). The BHA's stated "mission" from their website is -

To build greater awareness of homeopathy as an effective health care choice by the public through:

• promoting the value of homeopathy and its practice by statutorily regulated health professionals;
• promoting the advancement of the study of and training in homeopathy;
• research into homeopathy that will make an impact.

The BHA is not a membership organisation. Neither patients or doctors can join. Historically there seems to have been something called the "Friends of the BHA" but this seems to have disappeared and instead supporters can subscribe to a magazine. Thus it represents no-one, per se, more the abstract concept of homeopathy as healthcare.

Doctors who practice homeopathy have their own organisation - the Faculty of Homeopathy (FoH) - and the BHA exists mostly to promote them and fund their "training". The FoH would have definitely have standing to request judicial review were it not for the fact that those prescribing homeopathic medicines on the NHS are Anthroposophists, not medical homeopaths. Anthroposophists have their own voluntary regulator - the Council for Anthroposophic Health and Social Care (CAHCS) - and there is also the Anthroposophic Health, Education & Social Care Movement (AHaCS). Either of these groups might be regarded as having standing in terms of representing Anthoposophic GPs. Curiously, no Anthroposophic group seems to be bothered by the Consultation. 

There do not seem to be any formal homeopathic patient groups. Yes, groups like the Friends of the Royal London Hospital for Integrated Medicine exist but its scope is very limited. Individual patients of Anthroposophic GPs could in theory have standing but the picture painted of such patients by the BHA is that they can not afford private homeopathy so the likelihood of them being able to afford the legal costs involved in judicial review is practically zero. Of course, a crowd funding campaign would be possible but... 

The BHA has a history of "supporting" NHS homeopathy although that seems to consist mostly of stirring up supporters of homeopathy to respond to public consultations, sign petitions and write letters. It isn't clear what, if any, money it has put into this. It could be argued that the BHA does have standing on the basis of its stated aims on the Charity Commission website which includes campaigning and fundraising for "access to homeopathic services" but again the issue of Anthroposophic medicine rears its head. It is also worth pointing out that all things considered, the BHA has failed conspicuously in this "support". At best it may have managed to delay the decision of a few NHS bodies to remove homeopathic provision but not to prevent.

Other grounds for rejection were discussed in the previously mentioned post but there is another ground for dismissal of an application. The judicial review process is not one of fact finding (although this may take place). It concerns itself with matters of whether processes have been conducted legally, fairly and inline with any stated procedures/guidance. Cross-examination is rare. There is a "duty of candour" placed on parties - they are expected to be open and honest in their statements and dealings with the court. It is likely that a judge would take a dim view of "whataboutery". They are also expected to be honest about weaknesses in their case. Of course, the BHA are employing solictors to prepare their application however their solictors will be to a degree be dependent on the BHA for certain details - after all they are not experts in homeopathy, they are experts in public law.

As previous posts have pointed out, there are questions about the information that the BHA has presented to the public. They have uniformly depicted the Consultation as an attempt to "ban" NHS England prescribing of homeopathic and herbal medicine. Strictly speaking, the purpose of the Consultation was to produce guidance. NHS England and CCGs do not have the legal powers to prevent prescribing of such products - that lies with the Department of Health and Social Care and its ability to blacklist. The previously mentioned analysis of GP prescribing data shows prescribing happening despite CCG policies against. It is suggested that depicting prescribing by Anthroposophic GPs as "homeopathy" is a weakness in the BHA's case.

It might be thought that the lack of compelling evidence for homeopathy having any efficacy beyond that which is consistent with placebo is a weakness. The purpose the application and any resulting judicial review is not to determine the efficacy of homeopathy although the judge may think it pertinent.

There is no obvious case law to compare the BHA's application with. Whilst the dismissal of the application for judicial review by Honor Watt (acting, effectively as the BHA's proxy) may seem highly relevant, it related to the decommissioning a secondary care service by a local NHS body, not the issuing of prescribing guidance by a national NHS, which is arguably a much lesser thing.

It is worth pointing out that the granting of a rolled up process does blur the lines between the application for judicial review and the judicial review itself. Unfortunately, this makes discussion difficult in terms of exactly when in the process the Court may reach certain decision points.

Worse
To quote again from the crowd funding campaign -

The judicial review seeks, among other things, a declaration that NHS England has acted unlawfully in relation to its proposals and subsequent decision, on the basis of its failure to consult on them properly and to listen to patients!

This is a very aggressive statement. It seems very unlikely that any solictor would make such a statement. Arguably, the BHA are setting themselves up for failure and are making the assumption that their application will be accepted.

One element of the BHA's claim is that patients and "experts" have not been consulted. This seems strange in that this is the point of a Consultation. To claim that the Consultation paper itself should have been drafted with consultation with these groups is a baroque argument to say the least. That Anthroposophic GPs and their patients should enjoy some special consideration seems strange, unless the BHA has evidence (and the bar is set very low in terms of evidential standards) that there is a legal or procedural requirement to do. If the BHA has evidence that GPs who prescribed any of the other products and their patients recieved some sort of special consideration, there might be grounds for a claim of unfairness but that would not necessarily have any bearing on the outcome of the consultation.

The BHA do not specify who these "experts" are but it is clear that the BHA et al are dismissive of any one who does not agree with their assertion that homeopathy is effective.

The BHA assert that the Consultation "did not provide consultees with adequate information on which to provide a considered and informed response". Again, if the BHA has evidence to suggest that evaluation of homeopathy requires greater information compared to the other medicines/products included in the Consultation, or that consultees were provided with "adequate" information them, then there might be unfairness grounds for the application.

They go on to state -

We are also challenging NHS England’s decision to go ahead with the proposals and publish national guidance that homeopathic medicines should no longer be routinely prescribed by GPs.

On what grounds is unclear. It could be that the BHA believe that this is unreasonable action to take. Considered on its own, how could the decision to issue (unenforceable) guidance be seen as unreasonable in regard to the responses to the Consultation etc? Public consultations are not referendums. They are not popularity contests. It must be remembered that the BHA et al did mount campaigns to solicit Consultation responses from their supporters. Even if unfairness could be demonstrated above, that would not mean the decision unreasonable.

We are concerned that NHS England has failed to consider the effect of its decision on those patients with protected characteristics, in breach of the Public Sector Equality Duty (PSED).

This would look at first glance to be the mostly likely grounds on which an application might be granted. However, NHS England did carry out an equality and health inequalities analysis. It necessarily has limitations due to the nature of prescribing data. The raw does not include "protected characteristics" which are -

• age
• disability
• gender reassignment
• marriage or civil partnership (in employment only)
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

NHS England were able to use age and gender in their analysis. This explanation of "protected characteristics" is helpful. Not all of this data is routinely recorded by the NHS and the holding of this data and especially its usage is of concern qv Caldicott Report. From a pragmatic data analysis viewpoint, it would likely involve the use of GP clinical systems data and experience suggests that the cost involved would be considerable and would divert analytical resources from supporting NHS operations to defending NHS England against what is essentially a trivial concern from a fringe group.

It is not simply enough to wave around PSED as a justification for an application for judicial review. Again, it must be stressed that the evidential standards involved in the consideration of an application are quite low, but the BHA would need to be able to demonstrate that NHS England has not fulfilled PSED obligations - which would be difficult unless they had canvassed patients of Anthroposophic GPs for demographic data and de facto the BHA do not know those those persons are. The BHA et al can commission consumer research but what currently exists is very weak and can not form the basis of their argument. If they did commission research it would needed to be shared with NHS England.

Something that that is relevant to PSED arguments is that the majority of GP practices in the UK do not prescribe homeopathic medicines. 

Hang on a minute...
Something that needs to be understood is that as part of the application process is that the claimant (in this case the BHA and its solicitors) needs to share with the defendant (in this case NHS England) their submission, so that the defendant can can prepare their rebuttal. This may already have taken place. And the defendant needs to share their submission with the claimant. The claimant's solicitors could suggest to their client that the defendant's submission is too strong to argue against. Of course, a client has the right to press on regardless of advice, but ...

Rejection of Application etc
It is possible that the Court may take the view that as parties have already incurred legal costs preparing for a "rolled up" hearing they might as well be have their "day in court". The question of rejection may not arise. This would be odd - it is essentially a waste of court time. There are other reasons why the Court may grant permission but they are not necessarily positive. For example, the Court may grant permission for judicial review not on the merits of the arguments of the BHA but to protect NHS bodies from further actions by the BHA etc. This will be discussed later.

If the Court does reject the application, they will state the reasons. The claimant does have a right to verbal appeal but if the Court believes that the application is "totally without merit" that verbal appeal can be denied. There is no automatic right of appeal beyond this. The Court of Appeal can be approached to grant permission for judicial review but obviously this incurs further legal costs and the likelihood of success is obviously low. The Court of Appeal may well be minded to disregard approaches where the intial application was "totally without merit". Further appeal to the Supreme Court is possible but the bar is set very high in terms of matters they will consider.

Whether the BHA has the funds to pursue an appeal is moot. 

Judicial Review
As hinted at earlier, judicial review differs from other court proceedings. They are not trials. They are concerned with whether process has been conducted correctly rather than establishing the fact of guilty/liability. There is no jury, only a judge (although in unusual circumstances, a panel of judges is possible).

Typically, the claimants barrister will speak first, then the defendant's and finally the claimant's barrister will make a brief statement before the judge makes their decision. The skeleton of the arguments will have already have been submitted to the Court. There is an emphasis on efficiency - courtroom theatrics are frowned upon. Witnesses may be called but this is uncommon - generally, written submissions are considered sufficient. Cross-examination of witnesses is not forbidden but would be a rare departure from the established process. Judgement is generally not given on the day ("reserved") and tends to be in written form.

Whilst the BHA themselves may wish to call witnesses, it is likely that the kind of witnesses the BHA would favour would not be credible in the eyes of the Court.

The Court makes determination based on the facts presented to them. It is important to re-iterate that the Court will not concern itself with determining the efficacy of homeopathy - the Court is very likely to take the position that homeopathy's lack of efficacy has been sufficiently well established to be treated as fact.

(Homeopathy being "put on trial" is more likely to happen in negligence cases and even then may revolve around the negligence of a person than the use of homeopathy.)

No new ground will be covered in the hearing compared to the written submission - matters are simply discussed in greater detail, especially those of a more legal and/or technical nature.

Once judgement has been reached, applications for costs will be considered. The general rule is that the loser pays the winner's costs. Public bodies such as NHS England do necessarily have access to greater funding than bodies such the BHA (although they would rather not spend taxpayers' money in this way). Because of this, some arrangement regarding costs may be reached earlier in the process. Whilst the BHA has some crowd funding monies in place, in the case of them losing, these monies would not cover NHS England's costs. The BHA's solictors will have advised them of this.

The potential outcomes of judicial review were discussed in a previous post. Whilst the BHA stated that they wish for the Court to declare the Consultation illegal, from a more practical point of view, they probably want the decision of the NHS England Board to issue guidance to CCGs on the prescribing of homeopathic and herbal medicines quashed. If the arguments of their solicitors are not framed in the right way, this will not happen.

Similarly, whilst the BHA do not state it, they would probably want NHS England to withdraw their recommendation to the Department of Health and Social Care to "blacklist" homeopathic and herbal medicines. Again, this would depend on the framing of the application and submissions to the Court.

Implications
It is difficult to be certain as to the exact implications of any particular outcome except the BHA will certainly look bad if they lose. How bad will depend on the language of the judgement.

There is a question as to whether a judgement in favour of the BHA would open up questions about other elements of the Consultation and the decisions made and whether they would be then potentially subject to legal challenge. There do not seem to be any groups, say, actively campaigning for GPs to be able to prescribe dietary supplements but, in theory, if there were such a group with sufficient standing, it could challenge.

In the incredibly unlikely event that the Consultation and/or the decisions based on it were judged illegal, chaos would ensue. It would effectively raise the bar of the level of analysis that public bodies would have to do to ensure PSED was satisfied and effectively set a precedent allowing challenge of any recently made (or future) decisions made using that level of analysis. In the case of historical decisions, it would be more of a question of how policies are currently implemented.

Some CCGs have explicit policies against the prescribing of homeopathic and herbal medicines. Some have an implicit policy in that they have locally agreed formularies which do not include herbal and medicines. It is possible that certain judgements would allow these policies to be subject to judicial review. No judgement would have the power to undo these policies though. Whether the BHA has the appetite or funding to launch yet more judicial reviews is unknown.

It is important to remember that NHS England can not "unsay" the conclusions of the Consultation or the decisions of the Board. The Board could be prevented from issuing explicit guidance to CCGs but it would not prevent those CCGs that do not already have a de facto policy against prescribing homeopathic and herbal medicines from implementing one, although they might be more mindful of PSED requirements. The Board could be made to withdraw its recommendation that homeopathic and herbal medicines are "blacklisted". The Department of Health and Social Care's attitude towards "blacklisting" is unknown - the impact of withdrawal is moot.

Some of homeopathic and herbal products are on the General Sales List. They potentially can be dealt with by the OTC part of the Consultation etc without even invoking the words "homeopathic" or "herbal".

Appeal
Both the claimant and the defendant have the right of appeal to the Court of Appeal - but again it is a matter of applying for appeal and the likelihood of an application being granted will depend very much on the language of the judgement (eg "totally without merit"). It would seem unlikely that the BHA could afford an appeal and whether supporters would want to contribute to yet another crowd funding campaign.

The BHA would find their position decreasingly tenable as costs increase. Essentially - why are they wasting supporters money when that money could be used to pay for the homeopathic medicines of those who can not afford them?

Whether NHS England would appeal would depend very much on the nature of the judgement. If it does not impinge on other aspects of the Consultation and the decisions made by the NHS England board, they make take the view that as prescribing is in decline, simply to allow that decline to continue. However, they might take the view that protecting CCGs from judicial review would be strategic.

Further Discussion
Of course, this raises all sorts of questions about the strategy and tactics of the BHA. It is proposed to discuss these in a further post. They were not discussed here - it would have distracted from the main point of the post.