Wilson, Re Application for Judicial Review

Factual and Procedural Background

The Appellant has engaged with the public health system of Northern Ireland since 2017, involving interactions with the Department of Health for Northern Ireland ("the Department"), the South Eastern Health and Social Care Trust ("the Trust"), and the Health and Social Care Board ("the Board"). In 2021, the Appellant sought medical treatment under the S2 Scheme pursuant to Article 18 of the Protocol on Social Security Co-ordination ("SSC18"), part of the Brexit arrangements. The Department and Trust required a consultant's letter confirming diagnosis before authorising treatment under the scheme. At that time, the Appellant lacked a formal diagnosis, which prevented completion of the application.

The Appellant challenged a letter dated 8 September 2021 from the Trust's solicitor reiterating the necessity of addressing the matter within existing proceedings rather than by further court application. These proceedings were initiated on 28 September 2021.

Previously, the Appellant had ongoing judicial review proceedings initiated in 2020 concerning alleged unlawful delay in medical treatment. Those proceedings concluded with dismissal at first instance and on appeal. The current judicial review application was dismissed by Colton J on 4 May 2023, and the Appellant appeals that decision.

Legal Issues Presented

1. Whether Article 18 of the Protocol on Social Security Co-ordination (SSC18) confers a right to obtain authorisation for diagnostic services under the S2 Scheme.
2. Whether the refusal by the competent authority to provide authorisation without a prior diagnosis breaches the Appellant's statutory rights under SSC18 and section 26(1) of the European Union (Future Relationship) Act 2020 ("EUFRA 2020").
3. Whether the refusal frustrates the legislative purpose of SSC18 and related statutory provisions.
4. Whether the refusal was ultra vires and/or Wednesbury unreasonable.
5. Whether the appeal should be heard despite being academic, applying the Salem principle regarding public law appeals where no live dispute exists.

Arguments of the Parties

Appellant's Arguments

• Article SSC18, incorporated into domestic law by section 26 EUFRA 2020, mandates that authorisation shall be accorded for treatment abroad when certain criteria are met.
• A diagnosis is an integral part of medical treatment and should be considered a "benefit in kind" under SSC18.
• Diagnostic services fall within the rights conferred by Article SSC18, allowing travel to a Member State for diagnosis.
• The refusal to authorise treatment without a prior diagnosis breaches statutory rights and frustrates legislative purpose.
• The refusal is ultra vires and Wednesbury unreasonable, as it requires a paradoxical precondition of obtaining a diagnosis domestically before authorisation.
• The Appellant relies on Article 8 ECHR and section 26(1) EUFRA 2020.

Respondent's Arguments

• The S2 Scheme requires written support from a Northern Ireland consultant confirming diagnosis and treatment needs before authorisation.
• Eligibility criteria include that treatment must be unavailable within a medically justifiable time in Northern Ireland.
• The Department does not administer the scheme; the Trust and Health Boards assess applications based on provided clinical evidence.
• The Appellant fulfilled criteria for treatment availability and medical urgency but the refusal was lawful as diagnostic services are not covered under SSC18.
• The refusal is consistent with the statutory scheme and guidance.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the statutory framework underpinning SSC18, which forms part of the Trade and Co-operation Agreement and is incorporated into domestic law by EUFRA 2020. The Court acknowledged that SSC18 permits authorisation for treatment abroad when treatment is unavailable within a medically justifiable time in the patient's State of residence.

The central legal question was whether diagnostic services fall within the scope of "treatment" under SSC18. The Court agreed with the first instance judge that the language of SSC18 contemplates treatment as care appropriate to an already established medical condition. Diagnosis is a necessary preliminary step to treatment and must be obtained domestically before authorisation for treatment abroad is granted.

The Court considered relevant CJEU decisions but found them distinguishable due to factual and legal differences. It rejected the Appellant's argument that diagnostic services are encompassed within SSC18 benefits, emphasizing that such a construction would distort the scheme and undermine the clear division of responsibilities between the home State and the host Member State.

The Court also addressed the procedural status of the appeal, applying the Salem principle. It concluded that the appeal was academic, as the Appellant had obtained a diagnosis by the time of the hearing, removing any live dispute. The Court exercised its discretion to dismiss the appeal on this basis, noting the importance of conserving judicial resources and avoiding wasteful litigation.

Regarding new evidence presented at appeal, the Court declined to admit it, applying the Ladd v Marshall principles and emphasizing procedural fairness and the Salem principle.

Holding and Implications

The Court's final decision is to DISMISS THE APPEAL and affirm the judgment and order of the High Court at first instance in all respects.

The direct effect is that the Appellant's challenge to the refusal of authorisation under SSC18 for diagnostic services fails. The Court confirms that SSC18 does not confer a right to authorisation for diagnosis abroad, which must be obtained domestically first. No new precedent beyond the application of the Salem principle and interpretation of SSC18 is established. The Court also clarified procedural expectations regarding academic appeals and the admission of new evidence on appeal.