Belfast women's legal challenge over waiting lists dismissed in High Court

Any judicial interference in attempts to tackle the “crisis” in Northern Ireland’s hospital waiting lists is legally impermissible, the High Court has ruled.

Dismissing challenges by two women from Belfast over hold-ups in providing them with treatment, Mr Justice Colton held that a resolution must be found through political leadership.

He said: “They are the people to make these decisions, not the courts.”

May Kitchen, 77, and Eileen Wilson, 48, took legal action against health authorities, claiming an unlawful failure to provide them with necessary medical care within a reasonable time.

In the first case of its kind in the United Kingdom, they alleged breaches of a statutory duty and a violation of their human rights.

Mrs Kitchen, a retired nurse who lives alone in north Belfast, was diagnosed with cataracts in 2015.

Amid fears that she would lose her sight, the pensioner was told that the waiting list for surgery was 42 months.

She eventually used medical insurance for private treatment, but insisted that she should not be out of pocket due to her entitlement to free healthcare.

Ms Wilson, a mother of six from east Belfast, has sought an urgent consultation with a neurologist about her suspected multiple sclerosis since June 2017.

Judicial review challenges were brought against the Department of Health as well as the Belfast and South Eastern Health and Social Care Trusts.

The court heard one in seven people in Northern Ireland have spent longer than 12 months on a hospital waiting list amid “catastrophic” delays in securing treatment.

It was also set out that prospective patients in the region are nearly 50 times more likely than those in Wales to face a year-long wait for care.

Northern Ireland's Commissioner for Older People, Eddie Lynch, intervened in the case to support Mrs Kitchen’s challenge.

With 40% of people on waiting lists aged over 60, the court was told that the elderly are being disproportionately affected by the delays.

During submissions counsel for the applicants cited series of bleak findings in a report by Ulster University Professor Deirdre Heenan on the “gulf” between waiting lists in Northern Ireland and the rest of the UK:

• By September 2021 one in four people were waiting to see a consultant for the first time – increasing by almost 10% in a year

• Over half of patients had been on a list for more than 12 months

• Some people were waiting for up to five years for routine orthopaedic treatment, four years for ear, nose and throat procedures, and up to seven years for urology appointments

• Urgent, red-flag cancer patients have had operations cancelled, with potential worsening of the disease and increases in preventable deaths

Ruling on the challenge, Mr Justice Colton acknowledged: “It does not need recourse to law to establish that such a crisis exists."

But he said a series of efforts have been made to provide solutions to an issue identified as a major priority by various health ministers and the department itself. 

“It clearly involves high level political decisions in relation to resources and also in relation to structural reform of the health service,” the judge said. 

“Manifestly, that is not a matter for the courts. … Whether the problems that arise in relation to waiting lists in the health service are caused by resource issues or strategic issues, or a combination of both is not something which can be measured by a legal standard. 

“That is not a judgment which the courts can make.”

Referring to suggestions that urgent structural reform and transformation is necessary, he asked: “By what legal measure can this court determine whether the strategies outlined by the respondents meet that requirement? 

“Any interference in this sphere would plainly be impermissible.”

The judge described Northern Ireland's waiting lists as “clearly a matter of manifest public concern”. 

He added: “It is a matter that needs to be addressed by political leadership and decision making. It will also require, undoubtedly, leadership within the relevant department and trusts.

“They are the people to make these decisions, not the courts.”

Rejecting further claims that hold-ups in securing treatment breached Article 8 of the European Convention on Human Rights, he pointed out that the State provides a system of public health care funded by significant resources.

“Any decision that recognised a duty under Article 8 to provide health care within a particular time scale would be a very substantial departure from established authority and not in accordance with the court’s analysis of the State’s obligations under domestic law.”

The solicitor representing Mrs Kitchen and Ms Wilson said he would examine the judgment for any potential grounds of appeal.

Ciaran O'Hare of McIvor Farrell added: "My clients, like many people in Northern Ireland, are utterly appalled by the horrendous state of our hospital waiting lists, which continue to spiral out of control.

"The court acknowledged these proceedings were brought in the public interest, the issues with regards to our hospital waiting lists need to be addressed (and) stated that political leadership is required to tackle this crisis."

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