Wilson (Eileen) Application for Judicial Review and Kitchen (May) Application for Judicial Review and Eileen Wilson and (1) Department of Health for Northern Ireland (2) South Eastern Health and Social Care Trust (3) The Health and Social Care Board The Commissioner for Older People for Northern Ireland
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2023] NIKB 2 |
| Date | 09 January 2023 |
1
Neutral Citation No: [2023] NIKB 2
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: COL12020
ICOS No: 20/72752/01
20/007899/01
Delivered: 09/01/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY EILEEN WILSON
FOR JUDICIAL REVIEW
AND IN THE MATTER OF AN APPLICATION BY MAY KITCHEN
FOR JUDICIAL REVIEW
Between:
EILEEN WILSON
Applicant
and
(1) DEPARTMENT OF HEALTH FOR NORTHERN IRELAND
(2) SOUTH EASTERN HEALTH AND SOCIAL CARE TRUST
(3) THE HEALTH AND SOCIAL CARE BOARD
Respondents
and
THE COMMISSIONER FOR OLDER PEOPLE FOR NORTHERN IRELAND
Intervenor
Between:
MAY KITCHEN
Applicant
and
(1) DEPARTMENT OF HEALTH FOR NORTHERN IRELAND
(2) BELFAST HEALTH AND SOCIAL CARE TRUST
(3) THE HEALTH AND SOCIAL CARE BOARD
Respondents
___________
2
Mr Ronan Lavery KC with Mr Conan Fegan BL (instructed by McIvor Farrell Solicitors)
for both Applicants
Mr Ian Skelt KC with Ms Laura McMahon BL (instructed by Departmental Solicitor’s
Office) for the Department of Health for Northern Ireland
Dr Tony McGleenan KC with Mr Gordon Anthony BL (instructed by the Directorate of
Legal Services) for both Trusts
Ms Bobbie-Leigh Herdman BL made written submissions on behalf of the Commissioner
for Older People for Northern Ireland
___________
COLTON J
Introduction
[1] When the National Health Service was founded in 1948 by Aneurin Bevin, it
had three core principles at its heart; that it would meet the needs of everyone, that it
would be free at the point of delivery, and that it would be based on clinical need,
not ability to pay. Whilst the health service in this jurisdiction is not technically part
of the NHS, it too, subscribes to these principles.
[2] These applications bring into focus what is widely regarded as a crisis facing
the health service in this jurisdiction, namely the length of time patients are waiting
for treatment. It does not need recourse to law to establish that such a crisis exists.
[3] Both applicants in this case demonstrate the problem with such waiting lists
in this jurisdiction.
[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 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.
[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
3
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.
[7] Although the factual matrix for each applicant is different, involving different
medical conditions, different Trusts and different medical requirements, they both
raise similar legal issues. For this reason, it has been agreed that both applications
be heard together and that the court considers the legal issues that arise in respect of
both applicants.
[8] The court is obliged to all counsel in this case for their helpful written and
oral submissions. The court acknowledges the work of their respective solicitors in
preparing the trial bundles. The court also acknowledges the written submissions
from Ms Herdman BL on behalf of the Commissioner for Older People for
Northern Ireland.
The applicants’ case
[9] The applicants’ cases are based on alleged:
(a) Breach of statutory duty; and
(b) An unjustifiable interference with their Article 8 rights.
Breach of statutory duty
[10] Each of the applicants allege a failure on behalf of the respondents to provide
or secure the provision of primary medical services within Northern Ireland and/or
the jurisdiction of the relevant Trusts.
[11] The general statutory duties of the Department in relation to the provision of
healthcare are set out in section 2 of the Health and Social Care (Reform) Act
(Northern Ireland) 2009 (“the 2009 Act”). Section 2 provides as follows:
“Department's general duty
2-(1) The Department shall promote in Northern Ireland
an integrated system of—
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