Woman fails in legal challenge over health board’s ‘unlawful’ withdrawal of homeopathic services

Honor Watt, 73, who suffers from arthritis, argued that Lothian Health Board failed to take into account its “public sector equality duty” when reaching its decision, but a judge in the Court of Session dismissed the claim after ruling that the board had “a proper and conscientious focus” on its statutory duty.

Lord Uist heard that the health board decided in June 2013 to withdraw provision of an NHS homeopathy service in Lothian and cease referral to the Glasgow Homeopathic Hospital from 1 April 2014, but to honour the current service level agreement with NHS Greater Glasgow and Clyde over the referral of patients to the Glasgow Homeopathic Hospital for a period of two years.

It also decided to review the clinical needs of patients who use the homeopathy service funded by the board and also based on evidence look to re‑invest the funding into NHS healthcare of clinical value such as pain and chronic pain, palliative and chronic fatigue services in line with the aims of NHS Lothian’s strategic clinical framework.

However, the petitioner raised judicial review proceedings seeking reduction of that decision on the ground that it was “unlawful” as it was taken without due regard, in terms of section 149 of the Equality Act 2010, to the need to eliminate discrimination prohibited by the Act, et separatim the need to advance equality of opportunity between persons who shared the relevant protected characteristics under the Act and those who did not share them.

The petitioner, who is cared for by her 78-year-old husband, was first referred to the service in 2003 for anxiety, for which she took homeopathic medicines.

She also took a homeopathic medicine called “Bovista” for her arthritis, having found that conventional treatments for that condition were ineffective and produced undesirable side effects.

The court was told that she experienced “great relief” of her symptoms from the homeopathic medicines, but she was informed that she was no longer entitled to the treatment during a final appointment with the service in January 2014.

The broad proposition advanced on behalf of the petitioner – who the court was told was not fit to travel to Glasgow to consult with a homeopathic practitioner there – was that the board had given “no consideration whatsoever” to its public sector equality duty (PSED) when it reached its decision of 26 June 2013 to withdraw the provision of homeopathic services.

None of the protected characteristics, including that of the petitioner’s disability, had been taken into account, it was submitted.

The PSED was now “constitutional bedrock” which placed a vision of society on the decision maker, but there had been a failure on the part of the board to acquire the information which it was necessary for it to have in order to comply with the PSED.

But the board maintained that the personal circumstances of the petitioner were relevant to the balancing act that the board had to carry out when reaching its decision.

It had a statutory duty to provide healthcare, but no individual had a right to any particular health care provision, it was submitted.

Refusing the petition, the judge noted that part of the review process the board’s head of equality and diversity arranged for the preparation of an initial equality and diversity rapid impact assessment (RIA), which found that there remained “no evidence of illegal discrimination” should there be changes in service provision.

In a written opinion, Lord Uist said: “The petitioner does not in these proceedings challenge the lawfulness of the decision of the Board on the ground that it was a decision which no reasonable Board acting reasonably could have reached. Her challenge is based purely on an alleged procedural irregularity, namely, the failure of the Board to comply with its PSED under section 149 of the Act.

“It is clear to me from an examination of the relevant documents that the Board was from the outset consciously focusing on its PSED. I have reached the conclusion that the Board had a proper and conscientious focus on the statutory criteria and that it had obtained sufficient information to discharge its duty of inquiry under section 149 of the Act.”

In any event, the judge added, even if he had concluded that the board had failed to comply with its PSED, he would have refused to reduce the decision under review.

He said: “It is plain that the board, as it was entitled to do, accepted the view that there was no scientific evidence for the efficacy of homeopathy and that funding for it was a waste of the limited funds at its disposal.

“In these circumstances the countervailing factor in this case was so powerful, indeed overwhelming, that no decision other than the one taken by the board was conceivable. I am satisfied that reduction of the board’s decision of 26 June 2013 would result only in a waste of time and public funds as it would inevitably result in exactly the same decision being taken by the board.”