High Court Rules Second Opinion Policy Unlawful in Medical Justice v Secretary of State for the Home Department

Introduction

In the matter of Medical Justice, R (on the application of) v Secretary of State for the Home Department, the High Court was tasked with reviewing the legal challenges to the “Second Opinion Policy” introduced by the Secretary of State. The policy affected individuals in immigration detention deemed “adults at risk” by requiring a second medical opinion on reports concerning their vulnerability, potentially delaying decisions regarding their continued detention.

Key Facts

The case focused on three main grounds:

1. Whether the Second Opinion Policy contradicted and hence undermined the statutory purposes of section 59 of the Immigration Act 2016.
2. If the policy contradicted the approved Statutory Guidance on adults at risk in immigration detention established by section 59.
3. Whether there was a common law duty to consult the Claimant, a charity involved in supporting vulnerable individuals in immigration detention, before finalizing and publishing the policy.

A judicial review was pursued after the policy was implemented without consultation with stakeholders, including the Claimant, which would typically be involved in such discussions based on precedent.

Legal Principles

The court analyzed statutory interpretation principles, determining that the Second Opinion Policy departed from the Statutory Guidance that required decisions regarding at-risk adults in detention to be made based on available evidence. Instead, the policy introduced delays for obtaining an additional medical opinion. This contradiction breached the expectation that the statutory guidance, approved by Parliament, would be followed unless amended with Parliamentary approval.

Relating to the expectation of consultation, the court examined the concept of legitimate expectation, which suggests that if a public authority established a practice of consultation or gave assurances regarding consultation, then that authority is bound to consult. Consultations should ultimately adhere to the Gunning principles, ensuring thorough and meaningful exchange of views before implementing policy changes.

The case also highlighted the notion of conspicuous unfairness, whereby a failure to consult would result in significant injustice, particularly when considering changes with far-reaching implications for vulnerable individuals.

Outcomes

The High Court held that the Second Opinion Policy was unlawful on the following bases:

1. It contradicted the Statutory Guidance without Parliamentary approval, thus failing to meet the requirements of section 59 of the Immigration Act 2016.
2. It shifted from established practice and therefore undermined the statutory purpose of the Act.
3. There was a breach of the common law duty to consult with Medical Justice, violating principles of procedural fairness.

The court decided to quash the Second Opinion Policy based on the inconsistencies with the statutory guidance and the failure to engage in an established practice of consultation.

Conclusion

The decision in Medical Justice v Secretary of State for the Home Department exemplifies the importance of adhering to statutory guidance approved by Parliament and the duty of fairness inherent in the common law obligation to consult affected parties on policy changes. The judgment reinforces the requirement for the government to act transparently, consistently, and in accordance with procedural fairness — especially when handling issues related to the liberty and well-being of vulnerable individuals. This case serves as a reminder to public authorities of their obligations under both statutory law and established practices, ensuring that policies affecting individuals’ rights are not enacted arbitrarily and without due consideration of stakeholders’ inputs.