R (on the application of Royal Brompton & Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts and another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden |
| Judgment Date | 19 April 2012 |
| Neutral Citation | [2012] EWCA Civ 472 |
| Docket Number | Case No: C1/2011/3030 & (A)(B)(C) |
| Court | Court of Appeal (Civil Division) |
| Date | 19 April 2012 |
[2012] EWCA Civ 472
Lady Justice Arden
Lord Justice Richards
and
Sir Stephen Sedley
Case No: C1/2011/3030 & (A)(B)(C)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
OWEN J
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Dinah Rose QC & Miss Marina Wheeler (instructed by Capsticks Solicitors LLP) for the Appellants
Mr Alan Maclean QC & Mr David Scannell (instructed by Hempsons Solicitors) for the Respondent
Hearing dates : 19/20 March 2012
This is the judgment of the court to which all members of the court have contributed.
This appeal is brought by the Joint Committee of Primary Care Trusts ("JCPCT") from the order of Owen J dated 7 November 2011 quashing the major consultation which it had conducted into the reconfiguration of national paediatric cardiac surgical services by means of a public consultation document entitled Safe and Sustainable – A new vision for children's congenital heart services in England ("the consultation document"), issued in March 2011.
The consultation document set out a number of options for the whole of England. We can leave aside the options for areas other than London, with which we are not principally concerned. The main point was that in the consultation document the JCPCT expressed the preferred option that there should be two centres for London and that those two centres should be Evelina Children's Hospital (at Guys and St Thomas' Hospital) and the Great Ormond Street Hospital ("GOSH").
This preferred option did not include the respondent ("Royal Brompton"), notwithstanding that its excellence and its place as a world-leading research institution have never been in doubt. Royal Brompton is the largest specialist heart and lung centre in the UK and among the largest centres in Europe. It has, for many decades, been at the forefront of specialised treatment for complex heart and lung disease. It provides a specialist service for children's heart and lung disease and comprehensive paediatric critical care services. It has the second largest paediatric intensive care unit ("PICU") in England. It is one of the largest centres for clinical research into cardiological disease in the country. Its work is highly regarded. A member of the public might well find it difficult to understand why a centre of the standard of Royal Brompton should cease to be a centre for paediatric cardiac surgical services under the configuration exercise.
Royal Brompton was the applicant for the quashing order. It succeeded before the judge only on the last of five grounds on which it sought to have the consultation process set aside. In particular, Royal Brompton failed to establish that the preferred option precluded consultees from responding to the consultation that it ought to be included. Royal Brompton seeks to uphold the judge's order on a number of additional grounds.
Legal framework for the consultation exercise
PCTs are statutorily obliged to consult with users of their services on any change to the way those services are provided. As the judge explained
"8. …. Sections 1 and 3 of the National Health Service Act 2006 (the "Act"), oblige the Secretary of State for Health to provide or secure certain medical services. By regulation 3 of the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002 (SI 2002/2375) (the "2002 Regulations"), as amended, that function has for the most part been delegated to Primary Care Trusts ("PCTs"), of which there are 152 in England.
9. PCTs commission services from "providers", including NHS Foundation Trusts to meet the needs of the populations for which they are responsible.
10. Section 242 (2) (b) of the Act imposes a duty on each body to which it applies, which includes PCTs, to consult persons to whom services are being or may be provided on "the development and consideration of proposals for changes in the way those services are provided".
Users of services in this case include the parents of the children for whom paediatric cardiac surgical services are provided. They must be involved in the changes through the process of consultation.
Apart from the statutory framework, the general law must be considered. We shall deal later in this judgment with the correct approach to an application to prevent a consultation process from taking place. At this stage, it is sufficient to describe the obligation of fairness which the law imposes on any public consultation exercise. The leading authority on this is the judgment of this court in R v North and East Devon Health Authority ex parte Coughlan (Lord Woolf MR, Mummery and Sedley LJJ) [2001] QB 213:
"108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. 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 (R v Brent London BC, ex p Gunning (1985) 84 LGR 168)."
The Coughlan formula is a prescription for fairness. It is an aspect of fairness that a consultation document presents the issues in a way that facilitates an effective response: see, for example, R (Capenhurst) v Leicester City Council [2004] EWHC 2124 (Admin), [2004] A.C.D. 93. No doubt for that reason, as will appear below, the consultation document in this case explains at length the successive criteria for change that the JCPCT applied in this case. The consultation document must be clear to the general body of applicants: see R v Secretary of State for Transport ex parte Richmond upon Thames LBC (No.2) [1995] Env L R 390.
Another aspect of fairness is that it must present the available information fairly. In this case, because the JCPCT had to collect information from the centres to present the available information it would have to make clear to the centres what information it needed. A further aspect of fairness lies in the presentation of the information on which the views of consultees should be sought. The options for change must be fairly presented. Nonetheless, a decision-maker may properly decide to present his preferred options in the consultation document, provided it is clear what the other options are: Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435.
The object of requiring fairness is to ensure high standards in decision-making by public bodies, and to enable responses to be made which will best facilitate a sound decision as a result. In addition, it must achieve the statutory objective of section 242(2)(b) of the National Health Service Act 2006 of engaging users.
If the presentation of information inaccurately would have no material adverse effect on the process of consultation, perhaps because the error is patent, the error is unlikely to amount to unfairness when taken on its own (see generally R v Secretary of State for Transport ex parte Richmond-upon-Thames LBC (No.3) [1995] Env L R 409). However, aspects of alleged unfairness should be reviewed both individually and in aggregate. An individual aspect of unfairness may seem trivial on its own but when seen with other aspects of unfairness it may acquire greater significance.
If it is alleged that a consultation process is unfair, clear unfairness must be shown. As Sullivan J pointed out in R(o/a Greenpeace Ltd) v Secretary of State for Industry [2007] EWHC 311(Admin), it must be shown that the error is such that there can be no proper consultation and that "something [has] gone clearly and radically wrong".
On the other hand, it is sufficient to show that the unfairness affects only a group of the persons affected by the consultation: see R(Medway Council and ors) v Secretary of State for the Environment [2002] EWCA 2516 (Admin). Unfairness to the general body of consultees is not required.
In this case, the judge found that Royal Brompton had a "legitimate expectation" that its research information would be used in a certain way. A legitimate expectation arises where a public body such as the JCPCT makes a promise which has conferred on a person an expectation that it will act in a particular manner. The public body may be precluded from acting inconsistently with that expectation if it would be unfair for it to do so. Since legitimate expectation is relied on here to support a claim of unfairness, Mr Maclean agrees that it can be subsumed in the broader issue of unfairness.
Provisional decision-making and preparation for consultation
(a) History: the Bristol Royal Infirmary Report and the Monro Report
There have been a number of reports on paediatric cardiac surgery in recent years. These include the Report of the Inquiry into deaths at the Bristol Royal Infirmary chaired by Professor Sir Ian Kennedy (2001), the Report of the Paediatric and Congenital Cardiac Services Review Group chaired by James Monro (Department of Health 2003) and Surgery for Children – delivering a first class service (Royal College of Surgeons, 2007). More details about these...
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