R Colwyn Meurig Thomas v Hywel DDA University Health Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 04 December 2014 |
| Neutral Citation | [2014] EWHC 4044 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 December 2014 |
| Docket Number | Case No: CO/1933/2014 |
[2014] EWHC 4044 (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 No: CO/1933/2014
Nicholas Bowen QC and David Lemer (instructed by Watkins & Gunn) for the Claimants
Parishil Patel (instructed by Blake Morgan LLP) for the Defendant
Hearing date: 17 November 2014
Further written submissions: 21–26 November 2014
Introduction
The Claimant, who lives in Cardigan, challenges the decision of the Defendant ("the UHB") on 30 January 2014 to cease provision of in-patient beds at Cardigan Hospital ("the Hospital"), on the single ground that the UHB, in breach of its statutory and common law duties, failed to consult on the proposed change. The challenge is brought with the permission of Jeremy Baker J, granted at an oral hearing on 31 July 2014 following refusal of permission on the papers.
Before me, Nicholas Bowen QC and David Lemer appeared for the Claimant, and Parishil Patel for the UHB. I thank them at the outset for their helpful contributions.
Legal and Policy Background
Under section 1 of the National Health Service (Wales) Act 2006 ("the 2006 Act"), the Welsh Ministers are responsible for ensuring the provision of health services in Wales: in practice, that responsibility is borne by the Minister for Health and Social Services ("the Minister"). Section 11 establishes local health boards ("LHBs"), each of which, subject to any direction or guidance from the Minister, exercises various functions relating to the provision of NHS services in its area (section 12(1)-(3)). The UHB is the LHB for Carmarthenshire, Pembrokeshire and Ceredigion.
Part 12 of the 2006 Act makes provision for "Public involvement and scrutiny". Section 183(1) (which falls within Part 12 Chapter 2) provides:
"Each [LHB] must 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 the [LHB] affecting the operation of those services."
In addition to that requirement to consult generally, an LHB has a particular obligation to consult with the relevant community health council ("CHC"). CHCs were established in England and Wales under section 20 of the National Health Service Act 1977. The English councils were abolished from 1 December 2003, but they are expressly retained for Wales by section 182 of the 2006 Act, which falls within Part 12 Chapter 1 of that Act. The CHC for the UHB's area is the Hywel Dda CHC.
By section 182(4), schedule 10 to the 2006 Act makes provision for CHCs. Paragraph 1 of schedule 10 provides that:
"Each [CHC] must –
(a) represent the interests in the health service of the public in its district, and
(b) perform such other functions as may be conferred on it by regulations under paragraph 2."
The relevant regulations, made under this provision, are the Community Health Councils (Constitution, Membership and Procedures) (Wales) Regulations 2010 (SI 2010 No W37) ("the 2010 Regulations").
Regulation 26(1) provides:
"It is the duty of each Council to scrutinise the operation of the health service in its district, to make recommendations for the improvement of that service and to advise relevant [LHBs]… of such matters relating to the operation of the health service within its district as the Council thinks fit."
As well as that duty of on-going scrutiny, regulation 27 gives a CHC the right to be consulted by its equivalent LHB, and of course a correlative obligation on a board to consult its council. So far as relevant to this claim, regulation 27 provides:
"(1) It is the duty of each relevant [LHB] and NHS Trust in Wales (in this regulation referred to as "relevant Welsh NHS body") in respect of health services for which it is responsible, to involve a [CHC] in –
(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;
and it is incumbent upon each relevant Welsh NHS body to consult a [CHC] at the inception and throughout any such planning, development, consideration or decision-making process in accordance with any guidance which may be issued by the Welsh Ministers.
…
(3) Where a relevant Welsh… NHS body has under consideration any proposal for a substantial development for the health service in the district of a [CHC], or for a substantial variation in the provision of such a service, it must consult that [CHC] at the inception and throughout any such consultation or variation process.
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(5) Paragraphs (1)… and (3) do not apply to any proposals on which the relevant Welsh… health service body is satisfied that, in the interests of the health service or because of a risk to safety or welfare of patients or staff, a decision has to be taken without allowing for consultation; but in such case, the relevant [LHB]… must notify the [CHC] immediately of the decision taken and the reason why no consultation has taken place.
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(7) In any case where a [CHC] is not satisfied that –
(a) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate in relation to content or time allowed; or
(b) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate with regard to a [CHC] being consulted at the inception of such a proposal; or
(c) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate in relation to the frequency with which a [CHC] is consulted throughout the proposal and decision-making process; …
it may report to the Welsh Ministers in writing and the Welsh Ministers may require the [LHB] to carry out such consultation, or further consultation, with a [CHC] as they consider appropriate.
…
(9) In any case where a [CHC] considers that a proposal submitted under paragraphs (1) and (3) by a relevant [LHB] would not be in the interests of the health service in its district, it may report to the Welsh Ministers in writing and the Welsh Ministers may make a final decision on the proposal and require the relevant [LHB] to take such action, or desist from taking such action, as the Welsh Ministers may direct."
Regulation 27(1) refers to guidance from the Welsh Ministers. The relevant guidance, "Guidance for Engagement and Consultation on Changes to Health Services" ("the Minister's Guidance"), was issued by the Minister in March 2011. It stresses that the Welsh Government are intent on a programme of change for health services in Wales, it being "clear that change is needed if Wales is to have safe and sustainable services that meet modern standards at a time when resources are severely restricted" (paragraph 3).
In implementing that programme, the Minister's Guidance emphasises "the need for a new approach to change based on continuous engagement, rather than the perfunctory involvement around specific proposals… [T]he Welsh Assembly Government… expect organisations in the reconfigured NHS to pay considerably more attention to continuous engagement to ensure that all organisations are responsive to the needs and views of citizens" (paragraph 2). It goes on to say:
"4. This new guidance reflects a further rebalancing between continuous engagement and formal consultation, with an even greater emphasis on the former. The new NHS bodies and reformed [CHCs]… must work together to develop methods of continuous engagement which promote and deliver service transformation for their populations. It is not necessary to consult formally on every change that is required. Some changes can be taken forward as a result of effective engagement and widespread agreement.
5. However, in cases where substantial change or an issue requiring consultation is identified, the NHS should use a two-stage process where extensive discussion with citizens, staff, staff representative and professional bodies, stakeholders, third sector and partner organisations is followed by a focused formal consultation on any fully evaluated proposals emerging from the extensive discussion phase.
Note for readers on terminology: Although the words 'involve and consult' appear together frequently in the legislation, the question of when formal consultation is required needs further explanation and this is provided later in the document. This document uses the terms 'engagement/engage' to mean the continuous involvement of, or informal consultation or discussions with citizens, staff, staff representative and professional bodies, stakeholders, third sector and partner organisations regarding plans or changes. The terms 'consultation/consult' are used to describe the more formal, focused consultation which is to be employed if substantial or controversial changes are under consideration.
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8. The LHBs have strategic responsibility for ensuring safe and sustainable services. It is vital that LHBs and CHCs work together to achieve this across the whole of their area…
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14. CHCs represent the interests of the public in the health service in Wales. The need to secure safe and sustainable services and access...
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