The Court of Appeal, allowing an appeal in a contract dispute between a doctor and a clinical commissioning group, has found the determination by the adjudicator of a dispute referred to the Secretary of State is amenable to judicial review.

A GP entered into two non NHS-contracts for primary care services. The contracts were terminated by the NHS Hillingdon clinical commissioning group on the basis that Dr Sashi Shashikanth was in breach of a contractual obligation to co-operate with a primary care network in accordance to later amendments made to the National Health Service (General Medical Services Contracts) Regulations 2015.

Shashikanth referred the dispute to the Department of Health, as provided for under the contracts. An adjudicator, appointed by the secretary of state, determined that the CCG was entitled to terminate the contracts on the basis that there had been a breach of an obligation to co-operate with a primary care network.

Shashikanth applied for judicial review. A court found the adjudicator had erred concluding Shashikanth was in breach of a contractual obligation, but decisions of adjudicators were not amenable to judicial review. Shashikanth appealed.

Lord Justice Lewis, who wrote the leading judgment with which Lady Justice Nicola Daviesby and Lady Justice Asplin agreed, acknowledged judicial review is ‘only available against public law bodies in respect of public law matters’.

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He added: ‘The suggestion that the secretary of state or adjudicator is simply determining questions of private law contractual rights ignores how those rights came into being and how they may be enforced. It seeks to divorce those rights from the statutory framework within which rights are created and operate and disputes determined. Once the nature of a general medical services contract is appreciated, the suggestion that a statutory dispute process for resolving disputes about such contracts does not involve a public function does not reflect the reality of the situation.’

Finding the adjudicator in this case was amenable to judicial review, the judgment said the judge was ‘wrong to hold that the determination did not involve the exercise of a public function and was not amenable to judicial review’.

The judgment said the CCG failed to give notice of a contract variation which meant Shashikanth did not come under a contractual obligation to comply with the primary care network, as stipulated by the variation. The CCG ‘cannot simply assert that there is a contractual obligation, still less terminate a contract because of a breach of a contractual obligation, when no such obligation existed’.

‘If the CCG wished to terminate the contracts here, it had to establish that there existed a contractual obligation to co-operate which the appellant had breached,’ the judgment added.

The appeal was allowed. 

 

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