Keep Wythenshawe Special Ltd v NHS Central Manchester CCG and Others University Hospital of South Manchester NHS Foundation Trust and Others (Interested Parties)

JurisdictionEngland & Wales
JudgeMr Justice Dove
Judgment Date07 January 2016
Neutral Citation[2016] EWHC 17 (Admin)
Docket NumberCase No: CO/4920/2015
CourtQueen's Bench Division (Administrative Court)
Date07 January 2016
Between:
Keep Wythenshawe Special Limited
Claimant
and
NHS Central Manchester CCG (1)

and

NHS North Manchester CCG (2)

and

NHS South Manchester CCG (3)

and

NHS Stockport CCG (4)

and

NHS Tameside and Glossop CCG (5)

and

NHS Bolton CCG (6)

and

NHS Bury CCG (7)

and

NHS Salford CCG (8)

and

NHS Wigan CCG (9)

and

NHS Heywood Middleton and Rochdale CCG (10)

and

NHS Trafford CCG (11)

and

NHS Oldham CCG (12)
Defendants

and

University Hospital of South Manchester NHS Foundation Trust (1)

and

NHS North Derbyshire CCG (2)

and

Derbyshire County Council (3)

and

Stockport NHS Foundation Trust (4)

and

NHS Commissioning Board (NHS England) (5)

and

High Peak Borough Council (6)
Interested Parties

[2016] EWHC 17 (Admin)

Before:

Mr Justice Dove

Case No: CO/4920/2015

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT MANCHESTER

Manchester Civil Justice Centre,

1 Bridge Street West, Manchester,

M60 9DJ

Fenella Morris QC and Annabel Lee (instructed by Irwin Mitchell LLP) for the Claimant

Philip Havers QC, Jeremy Hyam and Kate Beattie (instructed by Hempsons) for the Defendant

David Lock QC and Robert Walton (instructed by Hill Dickinson) for the First Interested Party

Jason Coppel QC and Hannah Slarks (instructed by Bevan Brittan) for the Fourth Interested Party

Daniel Stilitz QC (instructed by NHS Commissioning Board) for the Fifth Interested Party

Hearing dates: 9 th & 10 th December 2015

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Dove Mr Justice Dove

Introduction

1

The Healthier Together ("HT") initiative is a programme of reform for the provision of healthcare services within Greater Manchester which was launched by the defendants in February 2012. As a consequence of successive legislative reforms, the provision of healthcare under the auspices of the National Health Service ("NHS") in England is a complex web of organisations with separate roles to play in the provision of services to patients. It is unnecessary for the purposes of this judgment to set out these arrangements in detail; what follows is a broad account of the various roles of the parties in this case in meeting patients' needs.

2

The defendants are the organisations charged with the responsibility of commissioning healthcare services from the providers of such services for patients in Greater Manchester. The first interested party ("1 st IP") and fourth interested party ("4 th IP") are responsible, respectively, for the Wythenshawe Hospital ("Wythenshawe") and the Stepping Hill Hospital ("Stepping Hill") and are therefore providers of largely acute healthcare through the operations of their hospitals. The fifth interested party ("5 th IP") is, amongst other functions, the commissioner of various specialised services at Wythenshawe. The second interested party ("2 nd IP") is responsible for commissioning healthcare services in Derbyshire, adjacent to Greater Manchester. The third interested party ("3 rd IP") and the sixth interested party ("6 th IP") are local authorities also in Derbyshire.

3

The claimant is a company which has been formed and deployed for the purpose of representing the interests of, in particular, consultants at Wythenshawe in these proceedings. Whilst questions have been raised by the defendants in relation to the standing of the claimant to bring this case, by the time of the hearing the issue of standing was only raised as a factor to be taken into account in the question of whether or not to grant relief. There is, therefore, no longer any outstanding issue as to whether, as a matter of principle, the claimant is entitled to bring this matter before the court.

4

Whilst HT was far more wide-ranging, the focus of the attack upon it in these proceedings relates solely to its proposals in relation to changes to acute hospital care, and in particular the proposal to identify Stepping Hill, as opposed to Wythenshawe, as one of the four Specialist Hospitals in the proposed redesign of hospital services. The claimant contends that the process whereby Stepping Hill came to be preferred was procedurally flawed and unfair and that it was substantively illegal as being a perverse decision which was unreasonable in the Wednesbury sense.

5

There are two further preliminary observations which it is necessary to make. Firstly, during the course of their evidence and in their initial pleaded cases the parties have raised and refuted a very large number of concerns and allegations. As the case has evolved, and in particular in the final stages of producing skeleton arguments and addressing the hearing, the cases have become far more focussed and less diffuse. This judgment therefore addresses the points which were raised at the hearing and which remained after this distillation process. It assumes, as the court must, that points raised earlier but not pursued in the context of the hearing are no longer relied upon and certainly are not at the heart of a party's case.

6

Secondly, I wish to place on record, as I did at the hearing, my thanks to all of the parties' representatives (both lay and legal) for the conspicuous hard work put into preparing for the hearing and then ensuring that it was completed following full submissions on all sides within the two days allowed. Demanding case management directions were made, and all parties rose to the challenge. This preliminary work, and the care and diligence with which it was undertaken, was instrumental in ensuring an effective hearing. All counsel also played their part in adhering to our timetable and using court time extremely efficiently with their careful, helpful and concise submissions.

The facts

7

It appears, in particular from the consultation material which will be examined below, that the motivation for the HT reform programme was both clinical as well as financial. For patients who had life-threatening injuries or illnesses the provision of specialist care spread across a large number of hospitals meant that in some hospitals staff did not see and regularly treat sufficient numbers of particularly ill patients to maintain and hone their skills in treating them. As an example, undertaking emergency surgery in nine acute hospitals led to treatment taking place in some instances without a consultant present and without a guaranteed admission to a critical care bed. The consolidation of these services into a more limited number of Specialist Hospitals was considered to assist in improving consistency in the quality of care and of outcomes, in particular at evenings and weekends. The financial case was based on the financial challenge being faced in respect of the provision of both healthcare and adult social care which, it was estimated, would exceed £1 billion if nothing was done to address and change the model of care.

8

The new model of care proposed in particular in relation to hospital care was described as the formation of "Single Services", and affected the provision of A&E, acute medicine and general surgery. Whilst every hospital, both those designated as a local General Hospital and also those designated as a Specialist Hospital, would have an A&E department, the sickest patients would go to a Specialist Hospital which would be the location for the provision of high-risk and emergency surgery. The Single Service would be provided by one team of doctors and nurses who would work across both a Specialist and also one or two of the General Hospitals. The General Hospitals would still provide surgery, but it would be elective or planned surgery. General Hospitals would also provide screening and diagnostic testing and services as well as out-patient appointments.

9

The work of examining the issues and developing a case for change, as well as the potential shape of the changes, occupied the defendants from February 2012 to December 2013. In the first half of 2014 they then proceeded to develop a business case for the proposals, described as the Pre-Consultation Business Case ("PCBC"). The future model of care was identified in the PCBC in the following terms:

"In summary, the proposed model of care for [hospital services] includes:

Deliver care locally for the majority of patients-local services;

Upgrade Local Services so that all sites achieve Greater Manchester Quality and Safety standards;

Care for the small number of patients with "once in a lifetime" life threatening illnesses and injuries in a smaller number of Specialist Services delivered in line with best practice standards;

To achieve this, create Single Services-multi-disciplinary teams responsible for the delivery of Specialist and Local Services across a sector of Greater Manchester;

Consultant led services delivered to best practice standards

Standardise and improve children's community care to treat as many children as is safe and appropriate to do so in the community;

Work with the Ambulance Service to direct patients to the right place at the right time, including to Community and Primary Care if appropriate as well as to Local and Specialist services, and;

Effective clinical leadership and decision making to ensure high quality, efficient care."

10

At this stage of the process the defendants formulated proposals for the criteria with which to assess the effectiveness of the various combinations of hospitals designated General and Specialist for the purpose of configuring the potential Single Services. The criteria were grouped into themes. In relation to "Quality and Safety" two criteria were identified:...

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    ...ex parte Doody [1994] 1 AC 531, per Lord Mustill, at 560 D – G). 116 In Keep Wythenshawe Special Ltd v NHS Central Manchester CCG [2016] EWHC 17 (Admin), Dove J. helpfully set out the established principles on consultation, at [65]–[68]: “65. The basic requirements of a lawful consultation......
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    ...2216 at [23]–[29]. 395 “The test is whether the process has been so unfair as to be unlawful”: citing the Keep Wythenshawe Special case 148 BMLR 1, §§77 and 87, per Dove J; and R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] PTSR 982, 396......
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    ...on what the court finds fairness to require having examined the nature and extent of the changes involved: see Keep Wythenshawe Special Ltd v NHS Central Manchester [2016] EWHC 17, [2016] 148 BMLR 1, (" Keep Wythenshawe Special") per Dove J at [74]–[75]. Consultation must "let those who hav......
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    ...to which what is now proposed differs from what was originally consulted on. In Keep Wythenshawe Special v NHS Central Manchester CGC [2016] EWHC 17 (Admin), Dove J said at [75]: “The requirements of fairness in considering whether or not to re-consult must start from an understanding of an......

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