Eileen Wilson and May Kitchen v Department of Health for Northern Ireland, South Eastern Health and Social Care Trust and Belfast Health and Social Care Trust
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 22 September 2023 |
| Neutral Citation | [2023] NICA 54 |
| Date | 22 September 2023 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2023] NICA 54
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: McC12268
ICOS No: 20/72752/A01
& 20/7899/A01
Delivered: 22/09/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
__________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
KING’S BENCH DIVISION (JUDICIAL REVIEW)
___________
BETWEEN:
EILEEN WILSON AND MAY KITCHEN
Appellants;
v
DEPARTMENT OF HEALTH FOR NORTHERN IRELAND, SOUTH EASTERN
HEALTH AND SOCIAL CARE TRUST AND BELFAST HEALTH AND SOCIAL
CARE TRUST
Respondents.
___________
Before: McCloskey LJ, Horner LJ and Rooney J
___________
Mr Ronan Lavery KC and Mr Conor Fegan, of counsel (instructed by McIvor Farrell
solicitors) for the Appellants
Mr Ian Skelt KC and Ms Laura McMahon, of counsel (instructed by the Departmental
Solicitors Office) for the first Respondent
Mr McGleenan KC and Mr Gordon Anthony, of counsel (instructed by the Directorate of
Legal Services) for the second and third Respondents
Ms Bobbie-Leigh Herdman (instructed by Aisling Gallagher LLM) on behalf of the
Commissioner for Older People for Northern Ireland, by written intervention
___________
McCLOSKEY LJ (delivering the judgment of the court)
___________
INDEX
Subject Paragraph No
Introduction 1-2
The Material Facts 3-4
The Issues 5
2
Statutory Framework 6-12
Other Important Evidence 13-17
Justiciability 18-25
“Macro/Target” Statutory Duties 26-35
The Statutory Duty Asserted 36-48
The Questions for the Court 49-64
The Family Planning Case Argument 65-67
The Art 98 Ground 68-69
The Article 8 ECHR Ground 70-74
Some Concluding Reflections 75-79
Disposal 80
Introduction
[1] Eileen Wilson and May Kitchen, (the “appellants”) have something of
significance in common. Each was the subject of a hospital referral by their respective
General Medical Practitioners (“GPs”) some years ago, in June 2017 (Mrs Wilson) and
July 2019 (Mrs Kitchen). The purpose of the referrals was to have their cases
considered by an appropriate medical consultant. Each of them has been the subject
of certain hospital services subsequently. Both complain of protracted delay in the
provision of medical treatment and services to them. In the language of counsels’
skeleton argument, in both cases the complaint is of a “failure to provide …. medical
treatment within a reasonable time.”
[2] The appellants challenged the failures of which they complain by applications
for judicial review. The cases were, sensibly, conjoined. Colton J dismissed their
applications. These combined appeals follow.
The Material Facts
[3] The parties responded positively to the court’s invitation to agree the material
facts. Their joint stance was that these are rehearsed accurately in paras 4-6 of the
judgment of Colton J. Thus, in the case of Mrs Wilson, per [2023] NIKB 2, para [4]:
“The applicant, Eileen Wilson, is a 47-year-old lady who
lives alone. She was referred to the South Eastern Health
and Social Care Trust’s (“the Trust”) neurology service in
June 2017 by her general practitioner because of suspected
multiple sclerosis. The initial referral for assessment was
classified as “urgent.” She was initially advised that the
current waiting list for neurology appointments is 163
weeks. Her case was later assessed by the attending
consultant to be “routine.” She was placed on a waiting list
and has been advised to contact her GP in the event of any
deterioration in her condition. She was due to have an
3
appointment on 16 March 2020 but this was cancelled due
to restrictions arising from the Covid-19 pandemic. A
consultant neurologist conducted a virtual appointment
with her on 11 March 2022. MRI scans were conducted on
the applicant on 11 May 2022. She has not been diagnosed
with having multiple sclerosis as a result of that scan and it
is suggested that her symptoms should continue to be
treated as fibromyalgia.”
It is appropriate to add the following. The hospital consultant’s initial evaluation of
this appellant’s referral, resulting in the re-categorisation from “urgent” to “routine”,
was undertaken within a period of approximately 30 weeks. It is evident that the
stimulus for the GP’s referral was a concern that the appellant might have been
afflicted with multiple sclerosis. This concern was assuaged at an early stage of the
hospital’s involvement.
[4] In the case of Mrs Kitchen, per paras 5 and 6 of the judgment of Colton J:
“[5] The applicant, May Kitchen, is a 75-year lady who
also lives alone. She was diagnosed with cataracts
approximately five years ago. She was referred to the
Belfast Health and Social Care Trust’s (“the Belfast Trust”)
ophthalmology service on 7 July 2019 by her general
practitioner and optician. She was advised that the
necessary operation for treatment of her cataracts would
not take place for three to four years due to the length of
waiting lists. After the pre-action protocol letter was issued
on her behalf on 13 December 2019 although the waiting
list for a routine out-patient appointment was 42 months
she was provided with an appointment by the Belfast Trust
for examination and testing of her eyes on 5 February 2020.
[6] Although she was offered this out-patient
appointment she was advised that the current waiting time
for surgery was likely to be 15-17 months. Despite
attending the out-patient’s appointment she did not
receive a date for surgery. She was fearful of losing her
sight completely and therefore felt compelled to pay for
private surgery through Benenden Health Care. Following
an appointment on 14 September 2020, she was offered an
appointment for private surgery within approximately six
weeks.”
This court, having reviewed further the affidavit evidence and having raised this issue
with the appellants’ counsel, established that this appellant did not in fact pay for the
private cataracts operation which she ultimately received. Rather, following her
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