R on the application of Save our Surgery Ltd v Joint Committee of Primary Care Trusts (Defendant) and Newcastle Upon Tyne Hospitals NHS Foundation Trust (interested party)  EWHC 439 (Admin) – read judgment
Philip Havers QC, Jeremy Hyam of 1 Crown Office Row represented the claimant in this case, and Marina Wheeler of 1COR acted for the defendant. None have them have anything to do with the writing of this post.
In this latest challenge to the reconfiguration of paediatric heart surgery services., the Administrative Court has held that an NHS plan to end child heart surgery at a number of centres in the UK was flawed for lack of consultation (see Martin Downs’ post on a previous challenge to this consultation).
As Martin predicted, fairness and consultation have proved to be more solid ground from which to launch a missile against the NHS reconfiguration plan. This plan followed the findings of the Public Inquiry into deaths at Bristol Royal Infirmary (the “Kennedy report”) and was meant to address the “fragmented and uncoordinated” nature of this surgery across the country. The inquiry found that up to 35 children had died as a result of sub-standard care during heart surgery. As a result, a specialist panel, the Joint Committee of Primary Care Trusts (JCPCT), was set up to encourage the development of specialisation by reducing the number of centres providing paediatric cardiac services.
The essence of their proposal was that the number of centres providing these services be reduced from eleven to seven, and In July 2012 the JCPCT announced it would end child heart surgery at Leeds, Royal Brompton and Leicester’s Glenfield.
The claimant was a shell company formed solely for the purposes of this litigation. It survived the defendant’s challenge to its right to standing, because, as the judge pointed out, the majority of the individuals who had contributed to the fighting fund, together with the Directors of the claimant, would have a direct sufficient interest in their own right had they brought the claim as individuals.
The company did not attack the merits of the JCPCT’s decision, but argued that it was procedurally flawed and unfair in that the group had produced “sub-scores” measuring the quality of service under various criteria but had not disclosed them to consultees. This, said the claimant, flew in the face of the criteria for proper consultation laid down in Coughlan  QB 213, particularly the requirement that the consultation
allow those consulted to give intelligent consideration and an intelligent response
- also, that adequate time should be given for this purpose. It was not contended, and the law on procedural fairness does not require, disclosure of every submission or all of the advice received. On the other hand, the more intrusive the decision the more likely it is to attract a higher level of procedural fairness. This requires, in turn, an equivalent intrusion by the court into the content of the consultation if it comes under challenge. In this case therefore Nicola Davies J went into considerable detail in analysing and setting out the “scoring” system adopted by JCPCT for the various centres, noting that
The Kennedy Panel’s scores were important. They were relied upon by the JCPCT as a proxy for “quality”, high quality service was given the highest weighting to reflect its importance. The scores fed directly into the final decision and were ultimately determinative of it.
But because of the way the information was parsed out, the consultees only possessed the narrative of the Kennedy report and the total scores, so that none of them could properly understand the “material differences” still less make informed and intelligent consultation responses in respect of the accuracy, or validity of the ranking process, as the absence of the sub-scores rendered it impossible for any centre to know how it had scored upon individual criterion. The defendant contended that disclosure of these sub-scores would not have promoted sound or efficient decision-making, and would have been disproportionate:
The sub-scores did not add in any material way to the information placed before consultees. They were not “the key” to understanding the supposed “material differences” in quality between the centres or the Kennedy Report. …
Disclosure of the sub-scores was not necessary to render the process fair, it was unlikely to improve the quality of the decision-making. The sub-scores were not material which the JCPCT was obliged to take into account when making its decision. [paras 84 - 88]
Reasoning behind the judgment
Nicola Davies J did not accept the defendant’s description of the sub-scores as being no more than ‘underlying workings’. They provided the basis for the consensus score which was ultimately used as one of the most valuable and thus significant tools in the assessment of ‘Quality’ of the respective centres. Fairness did require disclosure of the sub-scores to enable Leeds, which had specifically asked for it, to provide a properly focussed and meaningful response to the consultation.
The JCPCT was on notice of the importance of the criteria of ‘Quality’ and within it the use being made of the Kennedy Panel scores. With these considerations in mind, even if the JCPCT chose not to look at the sub-scores, consultees should have been given such an opportunity.[para 117]
Fairness is a blurry concept and there has been some scepticism about the consequences of this ruling, which some say has allowed the consultation process to be rerun in a court setting. The JCPT has released a statement in response to the judgment, saying that it constitutes a “major setback in improving outcomes for children with heart disease” – they hope that the court will not quash the decision in its entirety. As panel chair Sir Neil McKay says,
the purpose of our work is saving lives and improving quality of life for children, and on behalf of the NHS I want to reassure families, patients and clinicians that we remain as determined as ever to reconfigure services for children with congenital heart disease in the interests of better outcomes and a more safe and sustainable service for children and their families.
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