R (Bullmore) v West Hertfordshire Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Thomas |
| Judgment Date | 27 July 2007 |
| Neutral Citation | [2007] EWCA Civ 1067 |
| Date | 27 July 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2007/1513 |
[2007] EWCA Civ 1067
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE WALKER)
Lord Justice Pill and
Lord Justice Thomas
Case No: C1/2007/1513
Mr D Wolfe (instructed by Leigh Day & Co Solicitors) appeared on behalf of the Appellant.
Mr J Hyam (instructed by Messrs Capsticks) appeared on behalf of the Respondent.
This is an application for permission to appeal. It is made by Mr Zena Bullmore, as Chair of the Dacorum Hospital Action Group, and Mr Donald Giddings, who lives in Hemel Hempstead. It is sought to appeal against a decision of Walker J, following a hearing on 21 and 22 June 2007, refusing judicial review to the applicants.
The dispute is in relation to the provision of hospital services in Hertfordshire, and the proposed respondent is the West Hertfordshire Hospitals NHS Trust. They are responsible for hospital services in West Hertfordshire, which includes Hemel Hempstead, Watford and St Albans. Reference is made to the splendid services of Mrs Bullmore; to her concerns about medical provision in the area; and in particular to her work at the Hemel Hempstead General Hospital. Mr Giddings is 78 years old, and in need of medical attention, and his concern is to keep acute services available at the Hemel Hempstead General Hospital. That I regard as the mainspring behind the application.
It is stated that the concern is about the Trust's decision of 16 November 2006 to alter the pattern of hospital provision in its area so as, amongst other things, to stop providing acute and emergency hospital services at Hemel Hempstead General Hospital. The effect of the decision is that they would be concentrated at Watford.
The decision of 16 November is challenged on the basis that there has been insufficient consultation, as required by Section 11 of the Health and Social Care Act of 2001. It is submitted that such consultation as has occurred is defective, and that the Trust have erred in law in taking the decision without more appropriate public consultation. Section 11 provides:
“(1) It is the duty of every body to which this section applies to make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on—
(a) the planning of the provision of those services,
(b) the development and consideration of proposals for changes in the way those services are provided, and
(c) decisions to be made by that body affecting the operation of those services.”
The Healthy Futures decision, as the 16 November 2006 decision has been described, undoubtedly involved operations which come within the provisions of Section 11. In his written submissions on behalf of the applicants, Mr Wolfe cites the statement of Hodge J in Morris v Trafford Healthcare NHS Trust [2006] EWCA Admin 2334:
“The Section 11 duty to consult is of high importance.”
Walker J in the present case stated at paragraph 78:
“There is an overriding need for fairness in any consultation process. The outcome of consultation must be taken into account with a receptive mind.”
I have no doubt that the learned judge was fully aware of the nature and extent of the duties imposed on the Trust by Section 11.
The three questions raised as grounds of appeal (and I cite them fully, though they are helpfully summarised in the skeleton argument) are:
“1) The judge erred in law in concluding … that the “citizen's jury” process here met the essential requirements of fairness within the context of the consultation process.
2) The judge erred in law…in concluding that the Defendant dealt lawfully with the respondents' responses for those consultees (being at least 75 percent of the total) who supported centralisation of acute services at Hemel Hempstead rather than Watford.
3) The judge erred in law in concluding…that the defendant had dealt lawfully with the abandonment (6 days before the…meeting [of 16 November]) of proposals to develop a new hospital at Hatfield (which had been part of a package in which there had been consultation on two options, namely Watford + Hatfield versus Hemel Hempstead + Stevenage).”
Mr Wolfe has put his submission on ground 1 succinctly. A consultation exercise might have complied with Section 11 without any citizen's jury, but once it had been decided to employ this technique, which the evidence shows is a technique growing in use in the United Kingdom, it was essential that it be conducted fairly.
The criticism is that a one-sided case was put to the jury. The information pack, with which they were provided, dealt with the options preferred by the Trust. Where a reference is made to other points it is dealt with in the Trust's favour; counter-proposals, such as those which undoubtedly were made in the course of the replies to questionnaires which were issued, were not put to the jury for their consideration; thus the jury did not have the option of considering two or more properly presented cases. They had, in substance, only one case. Of course they had the opportunity to ask questions, accepts Mr Wolfe, but the questions were to be answered by witnesses for the Trust; not, for example, by a representative of the body making this application. He accepts that there were press reports putting a contrary point of view, a view contrary to the Trust's provisional view, to the juries, but that, it is submitted, was insufficient.
The information pack put the Trust's case. Professor Underwood was responsible for the report to the Trust, and he submitted a comprehensive report, in November 2006, that stated in relation to the citizen's jury:
“Set up in a courtroom style” the events involved jury members listening to evidence; considering key questions in their private meeting room; and returning to the courtroom to deliver a verdict on those questions.”
He states that there were two citizen's juries; no complaint is made about their composition. The citizen jury members:
“heard an introduction to an independent facilitator who chaired the events
heard evidence about the proposals from witnesses
had an opportunity to ask each of the witnesses questions
had an opportunity to read a detailed information pack
had an opportunity to consider key questions about the principles of the proposals
delivered their verdict on these key questions.”
Many of the jury's comments were favourable to the case which the Trust presented. There had also been a consultation exercise of a more traditional kind, by way of sending questionnaires to a large number of people within the Trust's area. The result of the consultation is set out in the report to the Trust. 4218 questionnaires were returned; in addition, there were 98 written responses from individuals and organisations; 46 telephone calls; one petition with over 7500 signatures; as well as an informed citizen's consultation panel. That was in addition to 54 staff or...
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