It is rare that the editor of a major journal predicts that a public service will face a "wave of judicial reviews". However that is the conclusion of the Alistair McClellan, editor of the Health Service Journal in a recent editorial.
What is the problem that has left the astute Mr McClellan fearing that NHS bodies will be spending more time with their lawyers? It is the fact that the NHS is re-organising itself in accordance with Sustainability and Transformation Partnerships – the new name for the overarching bodies that run NHS regions – which cross over the roles of NHS commissioners and NHS providers.
Whilst this all seems sensible in theory, the government was so spooked by attempting to get the last NHS Bill through parliament that they are trying to reform the NHS from the inside without passing any new primary legislation.
Mr McClellan is right that this causes major headaches which, if it is not corrected, will only end up before the courts. Some examples are:
Judicial reviews are, of course, unlikely to arise if NHS bodies do not make controversial decisions. But if STPs press ahead with imposing unpopular changes to local NHS services, the lack of any statutory underpinning for the STP may well present serious legal problems for the NHS.