R (on the application of A & Anor) v Secretary of State for Health  EWHC 1364 (Admin)
8 May 2014
Queen’s Bench Division,
(1) This was a rolled up hearing in which the Court granted permission and issued judgment on the substantive claim. There were two Claimants in this case, A (the first Claimant), a minor, and B, her mother. Their challenge concerned the limitations of the provision of abortion services by the NHS in
(2) The primary claim was that the first Claimant was unable to access abortion services in
(3) The Claimant sought declarations that the policy adopted by the Defendant of excluding residents in Northern Ireland from access to abortion services in England was unlawful because it led to an unlawful exercise of the Defendant’s functions under the National Health Service Act, and/or it was incompatible with the first Claimant’s rights under the ECHR.
(4) The Claimants focused on the Defendant’s failure to discharge his duty under section 3 of the National Health Service Act to make an exception to the residence based system for residents of
(5) The Claimants also argued that irrelevant considerations had been taken into account, namely the unavailability and unlawfulness of services in
(6) The Claimants also contended that the first Claimant had been discriminated against on the basis of her place of residence, which she argued fell within the concept of a personal characteristic or status, and therefore amounted to a breach of her Article 14 ECHR rights not to be discriminated against. The basis of the claim for discrimination was that she had been treated differently to all other citizens of the
(7) HELD: The Court found that there had not been any unlawful policy. The duty imposed by the National Health Service Act 2006 did not require the Defendant to meet all requirements for health services, but rather to assess whether the requirement (or exception) was reasonable and what, if anything, was needed to meet that requirement.
(8) The Defendant was entitled to have regard to the statutory position that for those resident in
(9) The Court also considered that the Defendant’s discretion was not unlawfully fettered. The Defendant was entitled to adopt the policy he had, and was free to change that policy at any time. The Court thus concluded that the policy was not unlawful on the basis of it being an unlawful exercise of the Defendant’s statutory functions under the NHS Act.
(10) Nor did the Court find there to be any human rights based error in the policy. The Court found that there was no deprivation of the opportunity for the first Claimant to receive abortion services, as she had in fact obtained such services. There was no convention right to a state funded abortion, and the Court held that the Article 14 challenge thus failed. Even if Article 14 were engaged, the Court found it dubious that there would be discrimination on the basis of status as the Claimant would, in an emergency, have been given access to abortion services on the NHS in
(11) The claim thus fell to be dismissed.
 – No unlawful policy.
 – Defendants’ assessment.
 – No objection residence based principle.
 – Not perverse.
 – No fettering.
 – Residence lawful.
 – Article 14 failed.
 – Justifiable.
 – Conclusion.
An authoritative source of case reports covering every aspect of immigration, asylum and...