Clarifying NHS England's Waiting Time Duties: Target Duty and Cohort Restrictions in AA & Ors v NHS Commissioning Board [2023] EWCA Civ 902

Introduction

The case of AA & Ors v National Health Service Commissioning Board ([2023] EWCA Civ 902) addresses pivotal issues concerning the obligations of NHS England (NHSE) in managing waiting times for healthcare services. The appellants, comprising two minors and two adults identifying outside their natal sex assigned at birth, challenged NHSE's compliance with statutory waiting time standards for gender identity services. Central to the case were two core issues:

Duty Issue: Whether NHSE has a target duty to achieve the 18-week waiting time standard or merely a duty to act towards achieving it.
Cohort Issue: Whether the duty is limited to referrals for consultant-led treatments or extends beyond them.

This commentary delves into the court's comprehensive analysis, exploring legal precedents, statutory interpretation, and the broader implications for NHS patients.

Summary of the Judgment

The England and Wales Court of Appeal concluded that Regulation 45(3) of the 2012 Regulations imposes a target duty rather than an achievement duty on NHSE. This means NHSE is obligated to make arrangements aimed at meeting the 18-week waiting time standard but is not absolutely required to achieve it. Furthermore, the court clarified that this duty is confined to referrals for consultant-led services, thereby rejecting the appellants' contention that the duty extends to a broader cohort.

Analysis

Precedents Cited

The judgment referenced several key cases to elucidate the nature of the duty imposed on NHSE:

R v ILEA ex pte Ali (1990): Distinguished between target duties owed to populations versus absolute duties owed to individuals.
R (Ahmad) v Newham LBC (2009): Reinforced the distinction between public law duties to individuals and target duties to populations.
R (Tandy) v East Sussex CC (1998): Highlighted the limits of absolute duties when policy considerations are involved.
R (on the application of Nash) v Barnet LBC (2013): Supported the idea that open-textured duties imply a target rather than an absolute obligation.

These precedents collectively underscored the court's approach to interpreting statutory duties within complex administrative frameworks.

Legal Reasoning

The court meticulously analyzed the language of Regulation 45(3), considering the phrase "make arrangements to ensure." The ambiguity of the word "to" was pivotal in determining whether the duty was purposive or result-oriented. Drawing from the Shorter Oxford English Dictionary, the court acknowledged that "to" can imply either a purpose or a result. However, contextual analysis within the 2012 Regulations and supporting documents like the NHS Constitution and the RTT Rules Suite pointed towards a purposive interpretation.

The court further reasoned that NHSE's role is inherently about commissioning and arranging services rather than providing them directly. Given the multifaceted challenges in healthcare provision—ranging from resource allocation to unforeseen circumstances like pandemics—the court concluded that imposing an absolute duty would be impractical and beyond NHSE's control.

Impact

This judgment has significant implications for NHS England and its service providers:

Regulatory Clarity: Clearly distinguishes between target and achievement duties, providing NHSE with the flexibility to address systemic challenges without fear of legal repercussions for unmet targets.
Cohort Restrictions: Limits the 18-week duty to consultant-led services, potentially streamlining resource allocation and administrative focus.
Policy Formulation: Empowers NHS policymakers to design waiting time frameworks that acknowledge real-world constraints while striving for efficiency.
Future Litigation: Sets a precedent for interpreting similar statutory duties within healthcare and other public service sectors.

Moreover, by affirming that the duty is not absolute, the judgment shields NHSE from claims arising from external factors impacting service delivery, thereby promoting a more resilient administrative approach.

Complex Concepts Simplified

Target Duty vs Achievement Duty

Target Duty: An obligation to take reasonable steps towards achieving a specific goal without guaranteeing its attainment. It recognizes external factors that may impede success.

Achievement Duty: A strict obligation to meet a specified outcome, regardless of external challenges or constraints.

Cohort Definition

In this context, a cohort refers to the group of patients to whom the 18-week waiting time standard applies. The court determined that this cohort is limited to referrals for consultant-led services.

Consultant-Led Services

These are specialized healthcare services managed by consultants—senior medical professionals with designated leadership roles. The 18-week standard applies specifically to referrals for these services.

Alternative Provision Duty

Established under Regulations 47-49, this duty requires NHSE to offer alternative service providers when the 18-week standard is not met. This duty is also confined to consultant-led services.

Conclusion

The court's decision in AA & Ors v NHS Commissioning Board provides crucial clarity on NHS England's obligations regarding waiting times. By characterizing Regulation 45(3) as a target duty limited to consultant-led services, the judgment balances administrative feasibility with the imperative to deliver timely healthcare. This nuanced interpretation not only aligns with existing legal precedents but also sets a pragmatic framework for future healthcare regulations and patient rights within the NHS. Stakeholders, including policymakers, healthcare providers, and patients, must navigate these clarified duties to ensure efficient and equitable healthcare service delivery.