Patricia Hewitt shows her true colours

(I am not obsessed with medical stuff, honestly. It is just that at the moment there's a lot of interesting medical stuff happening.)

Sadly, Remedy UK lost its case today. The full judgment is available here, courtesy of Dr Grumble. The case was a judicial review. Judicial review is what you ask for when a government body makes a decision which is irrational, unlawful or outside the power that it has under the law. It is not a review of the law itself. In this case, the decision under review was not the decision that led to the "Modernising Medical Careers" initiative itself, nor the decision to put the original MTAS scheme in place. What was reviewed was the way in which the MTAS review body appointed by the Secretary of State decided to modify MTAS when it became clear that MTAS as originally conceived just wasn't going to work.

I'm not going to comment on the merits of MTAS in detail, because it merits its own series of detailed posts. Trying to do that in this post, on top of what I want to say about Patricia Hewitt, would be like trying to put two arms into one sleeve. But fortunately I don't have to because Dr Crippen has covered MTAS at length since its inception. Suffice it to say that the unmitigated dogs dinner that is both MTAS and modified MTAS has caused huge uncertainty, great mental anguish and future hardship to this generation of junior doctors.

The action was brought by Remedy UK, a coalition of junior doctors who came together to bring this legal action. They represent the interests of the junior doctors. They had to do that because the BMA, despite being aware that the junior doctors who were paying its subscriptions were passionately against MTAS and modified MTAS, failed to adopt their position, as it should, being a representative body. In fact, it went further than that: it gave evidence for the Secretary of State at court. This obviously caused the Judge a serious problem, because the BMA holds itself out, and presumably held itself out at court, to be representative of the interests of doctors: see paragraph 124 of the judgment.

No doubt the fragrant Patricia will spin this as a victory for MTAS. It isn't. Judicial review is not about the merits of decisions - unless they are so ludicrous that no rational body could have reached such a decision; it is about the way in which bodies make decisions. An application for judicial review requires a court to examine a decision of a public body to see whether it was rational, not conspicuously unfair and within the law. As the Judge rightly observed at paragraph 126 of the judgment, "The fact that I might have reached a different solution is not to the point."

Reading between the lines of the judgment, the bottom line seems to be that MTAS was such an unmitigated disaster that it made modified MTAS look good. Patricia's lawyers were put in the position of positively arguing that the Secretary of State had cocked up the first time round in order to win the case. In paragraph 30, the Judge noted:

"It is unattractive for the [Secretary of State] to rely as part of her answer to this claim upon the failings of her process, [but] the review group could not... ignore facts. ... There was no perfect solution."

The Judge found for the Secretary of State. He did not personally endorse MTAS or modified MTAS. He emphasised that he was being asked to decide on a very limited question: it was not open to him to quash the introduction of MTAS in principle because that was not the decision in respect of which judicial review was sought, nor was he being asked to quash the decision to "use ... what many might think to be an inadequate application form for shortlisting" (paragraph 125). What he found was that in the circumstances created by the premature introduction of MTAS, modified MTAS was one of a number of solutions that the review body could reasonably have reached. He emphasised that whether he would have reached the same decision was not the issue. He made a number of explicit criticisms of both MTAS and modified MTAS in the course of his judgment. The penultimate paragraph of his judgment bears repeating in full:

"The fact that the claimant has failed...does not mean that many junior doctors do not have an entirely justifiable sense of grievance. The premature introduction of MTAS has had disastrous consequences. It was a flawed system in the ways I have indicated. This judgment does not mean that I agree with the decision of the review group; merely that it was one that the review group was entitled to come to. Neither does it mean that individual doctors would not have good grounds to appeal regarding their allocation or that they would not have good cases before an employment tribunal. Quite the contrary could well be the case."

Not exactly a ringing endorsement. But, irritatingly, still on paper a victory for La Hewitt.

Now, you might think that, having been forced to admit that the first incarnation of MTAS was a failure in order to save the second incarnation of MTAS from judicial review, Hewitt might find it in her heart to be gracious in wholly undeserved victory and leave it there. It's no secret that applications like this run up legal costs on both sides, and traditionally costs follow the event - by which I mean that the loser pays the winner's costs. In this case, the winner - if that's the right word - was the government, and the loser was Remedy UK, representing several thousand junior doctors, many of whose careers and lives have been fucked over by what was by common consensus a fundamentally flawed and ill thought out recruitment procedure, and, I assume, in the position of having to pay their own legal costs.

Some of them, as Crippen points out, are unemployed.

So if you were Hewitt, you wouldn't ask for costs, right?

Wrong. Oh, so very wrong.

Because Dr Crippen reports that her lawyers did seek costs, and made it clear to the Judge that they were instructed to do so by the Secretary of State.

It seems that the Judge was not happy about this - perhaps that's not surprising, given the tenor of his judgment - and he asked if that decision could be reconsidered. Apparently not.

And so the Judge had no real choice but to award costs against Remedy UK, because costs are not like fines; it doesn't matter whether you can afford them or not. When you begin proceedings against someone else you assume the risk of paying their costs at the end of it, and in the vast majority of cases if you lose you pay.

So there you go.

I wonder if she'll enforce the costs order now that she's got it.

Somehow I think she will.