R v North and East Devon Health Authority, ex parte Coughlan, 2001 [1999] EWCA Civ 1871
Citation: R v North and East Devon Health Authority, ex parte Coughlan, 2001 [1999] EWCA Civ 1871
Rule of thumb 1: If one citizen has been treated in a certain way by the public services, do other citizens have the right to be treated like this as well? As a general rule, yes, if one citizen is treated in this manner then this creates a ‘legitimate expectation’ that other citizens will be treated the same way.
Rule of thumb 2: If one person gets a promise from the NHS about treatment, do they have a right to this treatment as well? As a general rule, yes, once a promise has been made over treatment, then this has to be honoured.
Judgment:
The basic facts were that Coughlan sustained a serious injury. She was promised that she could see out the rest of her days in a nursing home, which was nearby to friends, family etc. The NHS then stated that they were closing this and Coughlan was being moved. The Court held that as Coughlan was promised this treatment, the NHS had to continue to provide this service & honour the treatment promise made.
Ratio-decidendi:
‘56. What is still the subject of some controversy is the court’s role when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him or her in a different way. Here the starting point has to be to ask what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman inRe Findlay [1985] 1AC 318 at p338, “But what was their legitimate expectation?” Where there is a dispute as to this, the dispute has to be determined by the court, as happened in Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion. 57. There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds. This has been held to be the effect of changes of policy in cases involving the early release of prisoners (see Re Findlay [1985] AC 318; R v Home Secretary ex parte Hargreaves [1997] 1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see A-G for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive , not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy. 58. The court having decided which of the categories is appropriate, the court’s role in the case of the second and third categories is different from that in the first. In the case of the first, the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise. In the case of the second category the court’s task is the conventional one of determining whether the decision was procedurally fair. In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised. 59. In many cases the difficult task will be to decide into which category the decision should be allotted. In what is still a developing field of law, attention will have to be given to what it is in the first category of case which limits the applicant’s legitimate expectation (in Lord Scarman’s words in Re Findlay ) to an expectation that whatever policy is in force at the time will be applied to him. As to the second and third categories, the difficulty of segregating the procedural from the substantive is illustrated by the line of cases arising out of decisions of justices not to commit a defendant to the Crown Court for sentence, or assurances given to a defendant by the court: here to resile from such a decision or assurance may involve the breach of legitimate expectation (See R v Reilly [1985] 1 Cr. App.R (5) 273,276; R v Southampton Magistrates Court [1994] Cr. App.R (5) 778, 781-2). (Lord Woolf)
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