Prioritisation of NHS resources during Covid-19 pandemic: Administrative Court rejects judicial review challenge

At a hearing held remotely on 24 February, Swift J refused permission for the Claimants to proceed with a judicial review claim against the Secretary of State for Health and Social Care and NHS England, on a topic which has generated much debate and publicity. The Claimants’ case is that there is a mandatory obligation for the Defendants to issue national guidance on how patients should be prioritised for NHS critical care resources if demand for critical care services exceeds supply as a result of the Covid-19 pandemic. They argue that a duty to issue such guidance arises under the Civil Contingencies Act 2004 and/or Article 8 ECHR, and that the refusal to issue national prioritisation guidance is irrational. Swift J accepted the submissions of the Defendants that all three grounds were unarguable. Julia Smyth represented the Secretary of State for Health and Social Care, instructed by the Government Legal Department.