Y for JUDICIAL REVIEW OF A DECISION OF HEALTHCARE IMPROVEMENT SCOTLAND

Factual and Procedural Background

The Petitioner is a hospice regulated by the Respondent, Healthcare Improvement Scotland, a public body established under the National Health Service (Scotland) Act 1978 to regulate independent health care services. The Petitioner sought judicial review of the Respondent’s decision contained in a draft report intended for publication, which referred to a complaint made against the Petitioner.

On 20 March 2019, the Respondent’s inspectors conducted an initial inspection ("inspection 1") to investigate the complaint. At a meeting following this inspection, the Respondent’s representatives indicated that nothing related to the complaint would be put in the public domain at that time. In March 2019, the Respondent partially upheld the complaint and imposed requirements and recommendations on the Petitioner, but did not publish the decision.

Between 31 July and 1 August 2019, the Respondent conducted an unannounced follow-up inspection ("inspection 2") to assess the Petitioner’s compliance with the earlier requirements. A draft report from this inspection referred to the complaint and noted that some requirements were unmet. This 2019 report was not published pending separate judicial review proceedings.

On 9 December 2020, the Respondent carried out a further announced inspection ("inspection 3") to assess the Petitioner’s delivery of care in light of the COVID-19 pandemic. The Respondent issued a draft report on 27 January 2021 ("2021 report") referring to the complaint and noting that the requirements and recommendations had been met. This 2021 report is the subject of the present judicial review.

Legal Issues Presented

1. Whether the Petitioner had a legitimate expectation, arising from representations made by the Respondent, that the complaint and related matters would not be published or made publicly available.
2. Whether the scope of inspection 3 was limited to assessing care delivery in light of the COVID-19 pandemic, and if including the complaint in the 2021 report was unfair, irrational, or a breach of the Petitioner’s Article 1 Protocol 1 rights.
3. Whether the Petitioner adequately identified the decision under challenge in the judicial review proceedings.

Arguments of the Parties

Petitioner’s Arguments

• The Respondent’s representations at the March 2019 meeting and subsequent conduct established a legitimate expectation that nothing concerning the complaint would be placed in the public domain.
• Detrimental reliance occurred as the Petitioner’s affairs were disturbed, and it lost the opportunity to challenge the complaint outcome through judicial review due to the Respondent’s representations and lack of an alternative procedure.
• The principle of good administration required the Respondent to honour the legitimate expectation, which had strengthened over time.
• Including the complaint in the 2021 report was contrary to the legitimate expectation and unfair.
• The scope of inspection 3 was limited to assessing care delivery in light of COVID-19, so including follow-up on the complaint was unfair, irrational, and breached the Petitioner’s rights.
• Reliance on authorities including Abdi Nadarajah v Secretary of State for the Home Office, Save Britain’s Heritage v Secretary of State for Communities, Finucane’s application for Judicial Review, R v North and East Devon Health Authority, ex parte Coughlan, Asim v Secretary of State, Tre Traktörer Aktiebolag v Sweden, and Bank Mellat v Her Majesty’s Treasury.

Respondent’s Arguments

• To found a legitimate expectation, any representation must be clear, unambiguous, and devoid of relevant qualification; the Respondent’s statement was qualified and limited to the outcome of the complaint investigation at that time.
• The phrase “we will not be putting anything in the public domain” referred only to the outcome of the complaint investigation and did not preclude reference to related requirements and recommendations in future reports.
• The representation was qualified by the words “At the moment, nothing”, indicating it applied only to the near future and not indefinitely.
• The Respondent was under statutory duties to follow up on requirements and recommendations arising from complaints, to inspect, report, and publish or make reports available, which would include subsequent inspections.
• The Respondent’s 2019 report already referred to the complaint, evidencing intention to publish, so any legitimate expectation ceased to be reasonable at that point.
• The stated purpose of inspection 3 (“to make sure the service is delivering care safely to patients, in light of the COVID-19 pandemic”) did not limit the inspection’s scope to COVID-19 alone.
• The Petitioner failed adequately to identify the decision under challenge, but the Respondent contended the 2021 draft report constituted the decision.
• Relied on authorities including R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd, and R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the procedural criticism that the Petitioner failed to identify the decision under challenge, concluding that the Respondent’s issuance of the 2021 draft report constituted a clear announcement of its intention to publish the report’s contents, including reference to the complaint. This was sufficient to identify the decision.

Turning to the substantive issue of legitimate expectation, the court analysed the Respondent’s representations in the context of the statutory framework and public policy. The Respondent is obliged under the National Health Service (Scotland) Act 1978 to protect the safety and wellbeing of users of independent health care services and to provide information to the public about service quality. It has statutory powers and duties to inspect, report on, and publicise findings.

The court doubted whether the Respondent had the power to promise non-publication of inspection reports at the inspection stage, noting that any such promise would likely be ultra vires. Even if a legitimate expectation could arise, the court found that the Respondent’s statements were not clear, unambiguous, or devoid of relevant qualification. The phrase “At the moment, nothing” qualified the representation, indicating it applied only to the immediate future and not indefinitely.

The court emphasised the distinction between the outcome of a complaint investigation and the ongoing requirements and recommendations that arise, which are subject to follow-up inspections and reports. The Respondent’s 2019 report had already referred to the complaint and related requirements, demonstrating its intention to publish such matters.

The Petitioner’s reliance on the inspection methodology was rejected as an overly literal interpretation. The court also found no merit in the argument that inspection 3 was limited to COVID-19-related matters; the stated purpose was contextual rather than restrictive. The court accepted the Respondent’s explanation that the inspection’s scope was broader and consistent with its policy to follow up on previous requirements and recommendations.

Finally, the court considered the Petitioner’s argument that failure to raise the legitimate expectation ground in earlier judicial review proceedings undermined the claim, but found that detrimental reliance and crystallisation of the expectation at the relevant time meant the expectation remained legitimate despite initial omission.

The Petitioner’s argument that inclusion of the complaint in the 2021 report was irrational, unfair, or a rights breach was rejected.

Holding and Implications

The court REFUSED THE PETITION, sustaining the Respondent’s third plea-in-law. The decision under challenge—the Respondent’s draft 2021 report referring to the complaint—was lawful and not subject to legitimate expectation preventing publication.

The direct effect is that the Respondent may proceed with publication or public availability of the 2021 report. No new precedent was established beyond affirming the application of legitimate expectation principles in the context of statutory duties to inspect and publish reports on independent health care services.