Consultation on children’s heart surgery was lawful, rules Court of Appeal
25 April 2012
Royal Brompton and Harefield NHS Foundation Trust, R (on the application of) v Joint Committee of Primary Care Trusts & Anor  EWCA Civ 472 – Read judgment.
Marina Wheeler of 1 Crown Office Row appeared for the successful Appellant in this case. She is not the author of this post
When is reorganisation of healthcare services unlawful? When can consultation, rather than a final decision, successfully be challenged? These were the questions dealt with by the Court of Appeal in relation to the reconfiguration of paediatric heart surgery services. The Bristol Royal Infirmary scandal had left these services in need of change; the Court of Appeal found that there was nothing unlawful in the consultation process resulting in the Royal Brompton failing to be chosen as one of the two specialist centres in London.
Following the failures in Bristol that were subject to a public inquiry in 1998, there have been a number of reports on paediatric heart surgical care. This is an extremely specialised area of medicine. The recent trend has been for such specialist areas (another example is major trauma care) to become concentrated in fewer hospitals: the principle being that when professionals come into contact with such work more regularly they become better at it; spreading such cases wide and thin results in poor outcomes.
With this background, the government initiated a review of paediatric cardiac services. It published a consultation document – Safe and Sustainable – A new vision for children’s congenital heart services in England in March 2011, that discussed options for the number and location of these specialist centres. The difficulty has arisen in London, where it is acknowledged there are three excellent hospitals for such care: Great Ormond Street Hospital (GOSH), Evelina Children’s Hospital and Royal Brompton.
There is currently a legal duty for Primary Care Trusts to consult the public over planning and development of services (s. 242 NHS Act 2006 – to be amended by the health reforms recently passed). The judgment sets out, over 55 paragraphs, the structure and execution of the consultation. This is a recommended read if you are interested in the organisation of health services and government health policy.
However, it isn’t necessary to set it out at any length here. It suffices to say that a specialist panel took evidence from hospitals, including through self-assessment questionnaires and submissions, and a steering group developed proposals for reform. To provide a single voice for PCTs, the Joint Committee of PCTs (JCPCT) was set up. Following the evidence stage, the JCPCT recommended for there to be two centres in London, and Evelina and GOSH came ahead of Royal Brompton in the weighted criteria. This was part of the Safe and Sustainable consultation document.
Royal Brompton instituted proceedings, alleging that the consultation was unlawful on five grounds, including that the steering group biased as they contained GOSH and Evelina consultants, though none from Royal Brompton; the consultation had pre-decided that two centres were needed; and that the consultation created a legitimate expectation that the self-assessment information would not be used in the specialist panel’s evaluation.
In the High Court, Royal Brompton succeeded only on this final one of five grounds: that a legitimate expectation was created that research evidence would be used in a certain way, and failure to do this created unfairness. The JCPCT appealed.
The Court of Appeal’s judgment is long, detailed and considered. It is actually fairly light on law. But it delves into the detail of a consultation that received 77,000 responses. The simple conclusion was that the consultation was not, in this case, unlawful because no legitimate expectation was created (see §§107-9) and the Hospital’s other grounds failed. However, the case is interesting as it shows the approach of the courts in judging policy development: two areas in particular – fairness and consultation – merit further consideration, as we will no doubt have similar challenges in future, particularly in the organisation of NHS services, when the Health and Social Care Act 2012 is enforced.
The Court gave some guidance on the role of fairness in judging consultations. The leading authority on public consultation of R v North and East Devon Health Authority ex parte Coughlan  QB 213 is cited at §8:
“108 To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken”.
This is cited as “a prescription for fairness”. To this prescription were added some directions for use in §10. “It is an aspect of fairness that a consultation document presents the issues in a way that facilitates an effective response”; “Another aspect of fairness is that it must present the available information fairly” and “A further aspect of fairness lies in the presentation of the information on which the views of consultees should be sought.” §§11-15 complete the summary of fairness.
There is the further and linked question of when a consultation can be held to be unlawful. In public law, it is decisions made by public bodies that are challenged. But to what extent can gathering views before a decision is made be challenged? The JCPCT argued that the consultation process is designed to eliminate errors so that the right decision is arrived at. The problem with challenging it is that it is not a final decision and the government body can change its thinking in light of responses received (see §§87-88).
The Court essentially agreed, helped by the fact that in this case, the JCPCT had reconsidered self-assessment information from Royal Brompton. The Court stated:
“In short, it is inherent in the consultation process that it is capable of being self-correcting. This has to be borne clearly in mind. For the various reasons already indicated, the courts should therefore avoid the danger of stepping in too quickly and impeding the natural evolution of the consultation process through the grant of public law remedies and perhaps being led into areas for the professional judgment of the decision-maker. It should, in general, do so only if there is some irretrievable flaw in the consultation process” (§93).
The court later said “It was the type of challenge [to have three centres instead of two] which could… have been made in the response to consultation, and in that sense the challenge was premature. There will, however, will be other cases where the court has to grant relief in relation to a consultation process” (§140).
Consultations must be fair
The case shows that consultation exercises must be fair for them to be lawful. This is a clear principle of public law and decision-makers will do well to bear it in mind. However, it was also shown that it is inappropriate to use the courts as an extended forum for consultation. Where the challenge to the consultation is that ‘x’ decision should be taken instead of ‘y’, the challenge is likely to fail.
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