R Anthony John Flatley v Hywel Dda University Local Health Board The Welsh Ministers (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 10 July 2014 |
| Neutral Citation | [2014] EWHC 2258 (Admin) |
| Docket Number | Case Nos CO/4383/2013, CO/17298/2013 & CO/17648/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 July 2014 |
[2014] EWHC 2258 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET
Mr Justice Hickinbottom
Case Nos CO/4383/2013, CO/17298/2013 & CO/17648/2013
and
and
and
Nicholas Bowen QC and Conor McCarthy (instructed by Watkins & Gunn) for the Claimants
Tim Buley (instructed by the Treasury Solicitor) for the Welsh Ministers
Monica Carss-Frisk QC and Iain Steele (instructed by Morgan Cole) for Hywel Dda University Local Health Board
Hearing dates: 24–26 June 2014
Introduction
The Welsh Government is engaged in reforming health services in Wales.
As part of that process, in November 2011, it published a document, "Together for Health: A 5-Year Vision for the NHS in Wales", which said that the healthcare budget could not continue to increase year-on-year to meet rising demand, and therefore the way in which services were delivered would need to be reviewed to ensure a sustainable, high quality future health service in Wales. The status quo, it said, was not an option. The work on this programme of reform has been done through local health boards; although, in certain circumstances, the Minister for Health and Social Services ("the Minister") has the final word.
The reforms are being made against the backcloth of another Welsh Government paper dealing with the challenges of delivering health services in rural Wales, namely "Rural Health Plan – Improving Integrated Service Delivery across Wales" (December 2009) ("the Rural Health Plan 2009"). This proposed a greater focus of specialised health services, together with greater accessibility to less specialised services within communities. The report said (at paragraph 4.2.1 and 4.2.2):
"4.2.1 Providing the right care in the right place and by the right person in rural communities presents additional challenges. From our research, it is broadly recognised by people living in isolated communities in Wales that the delivery of more complex healthcare may need to be centralised in a small number of specialist centres where the expertise is concentrated to provide best possible outcomes.
Such models will require patients and their families to travel, sometimes making long journeys, to access care and where this is proportional to their need. This appears to be accepted as an inevitable consequence of rural living.
4.2.2 Alongside this, however, we need to ensure that core services and less specialist care are accessible within local communities, drawing on specialist care as and when necessary…".
These claims concern proposals to change services in largely rural areas of West Wales, as part of this programme.
Anthony Flatley ("the First Claimant") is a regular user of the Prince Philip Hospital, Llanelli ("PPH"), and the Secretary of an association called Save our Services Prince Philip Action Network ("SOSPPAN"). He challenges two decisions concerning service changes to emergency care at PPH, in two separate claims: a decision of the Hywel Dda University Local Health Board ("the LHB") on 15 January 2013 (Claim No CO/4383/2013, " Flatley 1"), and a decision of the Minister on behalf of the Welsh Ministers on 24 September 2013 in respect of those changes following a referral to him by the Hywel Dda Community Health Council ("the CHC") (Claim No CO/17298/2013, " Flatley 2").
Kayleigh Donohoe ("the Second Claimant") lives in Monkton, Pembrokeshire. She challenges a decisions of the Minister on 24 September 2013 and 21 January 2014 in respect of changes to neonatal care at Withybush Hospital, Haverfordwest ("Withybush"), again following a referral to him by the CHC (Claim No CO/17648/2013, Donohoe).
Before me, Nicholas Bowen QC with Conor McCarthy appeared for the Claimants; Tim Buley for the Minister; and Monica Carss-Frisk QC with Iain Steele for the LHB. At the outset, I thank them for their full and helpful submissions.
There is no doubting the sincerity of the Claimants, and those who support them, in seeking to maintain the services at their local hospitals. They deeply believe that some of the changes proposed should not be made, as they will result in a diminution of services they receive. The LHB and the Minister do not accept that premise: they say that the changes will result in better health services, when viewed across the whole area. However, as I emphasised during the course of the hearing, this court is not concerned with the substance or merits of relevant decisions. The services to be provided to those who live in West Wales are a matter for the LHB and the Minister. It is they who have to grapple with the difficult decisions of providing health services to a population with increasing and competing demands for such services, in times of financial constraint. This court is only concerned with the lawfulness of the decisions, focused on the process adopted.
Mr Bowen submitted that, in respect of each of the decisions, that process was flawed.
The Grounds of Challenge
The LHB Decision: Flatley 1
In respect of the challenged decision of the LHB with regard to PPH, in short, prior to these proposed changes, the hospital had emergency care facilities with on-site doctors in the unit at all times. On 15 January 2013, after a consultation process, the LHB determined to change that arrangement in favour of nurse-led facilities with doctor support, not as a physical presence in the unit, but rather in the form of telephone and other electronic links to the Glangwili Hospital, Carmarthen ("Glangwili"), over 20 miles away.
Mr Bowen submits that the decision-making process was legally flawed, on three broad grounds (the numbers adopted below being mine):
Ground 1: The consultation process failed to give consultees a proper opportunity to present their case upon the proposals, in three respects:
Ground 1A: The LHB did not consult at a formative stage with an open mind, as they were legally obliged to do; because, prior to the consultation process starting, the proposed change had been predetermined by the LHB, or alternatively the LHB had a clearly preferred option which was not disclosed to relevant consultees at the time. Mr Bowen particularly focused on this, his primary ground.
Ground 1B: The LHB decision deferred a number of fundamental and highly controversial issues (including transportation of patients) to the implementation phase. These could not properly be severed from the issue of whether the LHB proposal was right in principle, as they were of such importance as potentially to call into question the advisability and viability of the proposed model.
Ground 1C: The LHB failed to give consultees sufficient time and information to enable them properly to engage with the process.
Ground 2: In breach of a legitimate expectation, the LHB resiled from a promise to appoint an independent chair of the board that is to implement the proposal.
Ground 3: The LHB failed to have due regard to equality matters as required by section 149 of the Equality Act 2010. In particular, having identified important equality impacts of its proposal, it failed to assess the scale of the impact and thus whether that impact called into question the propriety of the model itself.
Permission to proceed was refused on all grounds by His Honour Judge Bidder QC sitting as a judge of this court, on 17 May 2013. On 19 July 2013, at the renewal hearing, His Honour Judge Curran QC directed that the application for permission be adjourned to a rolled-up hearing, dealing with both permission and, if granted, the substantive application. However, on 25 October 2013, the claim was stayed by Wyn Williams J until the application for permission to proceed in the judicial review claim against the Minister's subsequent decision (i.e. the decision which is the subject of Flatley 2) had been determined. I removed that stay on 7 March 2014, when I granted permission to proceed in Flatley 2, on limited grounds.
All grounds in Flatley 1 are therefore before me on a rolled-up basis.
The Minister's Decisions: Flatley 2 and Donohoe
In respect of PPH, under statutory provisions to which I shall shortly come, the LHB's proposal was referred to the Minister by the CHC. Following investigation and a report by a Scrutiny Panel, on 24 September 2013, the Minister changed the decision of the LHB, in favour of a model with on-site doctors at the PPH emergency facility; and, on 21 January 2014, he determined that there would be an enhanced neonatal facility at Glangwili, and that Withybush would have only a midwife-led maternity unit.
Mr Bowen submits that each of these decisions is unlawful, on three grounds (again, the numbering being mine):
Ground 4: The Minister fundamentally misunderstood his obligations and powers under the relevant statutory regime and at common law with regard to a final decision on the proposal for change of services; and in particular failed to appreciate that the matters that he was required or entitled to take into account included deficiencies in the LHB's consultation process.
Ground 5:...
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R Colwyn Meurig Thomas v Hywel DDA University Health Board
...public involvement and consultation). Those sections appear in different chapters of the Act. As I emphasised in R (Flatley) v Hywel Dda University Health Board [2014] EWHC 2258 (Admin) at [139], in which Mr Bowen sought to argue the contrary, regulation 27(7) of the 2010 Regulations is onl......