R Rachel Nettleship v NHS South Tyneside Clinical Commissioning Group
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Lord Justice Peter Jackson,Sir Andrew McFarlane P |
| Judgment Date | 28 January 2020 |
| Neutral Citation | [2020] EWCA Civ 46 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/1974 |
| Date | 28 January 2020 |
[2020] EWCA Civ 46
PRESIDENT OF THE FAMILY DIVISION
Lord Justice Peter Jackson
and
Lady Justice Nicola Davies DBE
Case No: C1/2019/1974
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
His Honour Judge Mark Raeside QC
CO/1968/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Vikram Sachdeva QC and Annabel Lee (instructed by Irwin Mitchell LLP) for the Appellant
Eleanor Grey QC and Adam Fullwood (instructed by Capsticks LLP) for the Respondent
Hearing date: 19 November 2019
Approved Judgment
In proceedings for judicial review the appellant seeks a declaration that the decision of 21 February 2018 (“the Decision”) taken by NHS South Tyneside Clinical Commissioning Group and NHS Sunderland Clinical Commissioning Group (“the CCGs”) to reconfigure certain hospital services (stroke, obstetrics and gynaecology and paediatric services) such that they would continue only at the Sunderland Royal Hospital (“SRH”) and not at the South Tyneside District Hospital (“STDH”) was unlawful and should be quashed. On 23 July 2019 HHJ Mark Raeside QC dismissed the appellant's claim on the seven grounds before the court. Four grounds of appeal are raised by the appellant, permission to appeal was granted by Lindblom LJ on 10 September 2019.
The appellant is a resident of South Tyneside and daughter of the unofficial chair of the Save South Tyneside Hospital campaign group, Roger Nettleship. The appellant, her father, together with other members of the local community, have provided witness statements setting out the opposition to the reconfiguration. The population encompassed within South Tyneside Clinical Commissioning Group is 152,000. Life expectancy in the South Tyneside area is considerably beneath the national average, with levels of health and underlining risk factors being some of the worst in the country. Levels of smoking, consumption of alcohol and obesity leading to cancer and heart disease are among the highest causes of death. The appellant contends that local hospital services are particularly important to such a population. The campaign group's petition to retain consultant-led services at STDH received between 30,000 and 40,000 signatures.
The respondents are CCGs who are the relevant commissioners of a range of acute and community NHS healthcare services. Their core statutory duties are set out in section 3(1) of the National Health Service Act 2006 (“the 2006 Act”). Pursuant to those provisions the legal duty of the CCGs is to arrange for the provision of such services “to the extent it considers necessary to meet the reasonable requirements of the persons for whom they have responsibility”.
Pursuant to section 14Z2(2) of the 2006 Act the respondents are obliged to involve persons who are or might be provided with the services, it states:
“(2) The clinical commissioning group must make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways)—
(a) in the planning of the commissioning arrangements by the group,
(b) in the development and consideration of proposals by the group for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and
(c) in decisions of the group affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact.”
Pursuant to section 14Z2(5) of the 2006 Act, all CCGs must have regard to the guidance published by NHS England in respect of the process of reconfiguration of health services. This is set out in “Planning, assuring and delivering a service change for patients: A good practice guide for commissioners on the NHS England assurance process for major service changes and reconfigurations” (“the Service Change Guidance”). Further, relevant guidance is available from NHS England in “Patient and public participation in commissioning health and care: Statutory guidance for clinical commissioning groups in NHS England (2017)” (“the Participation Guidance”).
The Service Change Guidance prescribes a six-stage process commencing with the identification of the need for service reconfiguration through to implementation. The stages are:
i) discussion;
ii) proposal;
iii) assurance;
iv) consultation, public consultation may not be required in every case;
v) decision;
vi) implementation.
Background
In 2016 the respondents established the Path to Excellence Programme in order to review and plan the future of hospital services at STDH and SRH. It aimed to address three care gaps outlined in the NHS Five-Year Forward View: health and wellbeing; care and quality; finance and efficiency. The aim of the programme was to undertake a full review of hospital services at both hospitals. However, due to the substantial pressures facing stroke, obstetrics and gynaecology and paediatric emergency services it was decided that phase one of the programme would deal with those areas as a priority. It is the respondents' case that the programme had been clear from the outset: services could not be retained in their current form. This was consistent with national strategies for change taking place across the NHS and was in response to particular issues faced by the two hospitals.
The Issues Paper – November 2016
The first step in the process leading towards the consultation was a pre-engagement listening phase. The respondents published an Issues Paper which identified the challenge facing local health services and the proposals for change. It provided information as to the steps being taken at that stage. The document was published on websites and was available to the public. A series of engagement events were held relating to the content of the paper.
The identified purpose of the programme was to secure safe and sustainable NHS services in the future. Identified problems included the recruitment of staff in key clinical specialities, the impact of a failure to recruit on patient clinical care, recognition of the financial challenges which the NHS faced and the fact that the best use of staff expertise and other resources was not being made. In the first section of the Paper entitled “Why things cannot stay as they are” it was stated that the quality of care received by people in the area could vary. It identified growing demands upon the NHS which resulted in financial pressure on local organisations at a level never before seen. It acknowledged that the needs and expectations of the public were changing, that different and more complex care was required and that local health services needed to change in order to produce a more effective and efficient local health service. Duplication of services and system pressures were identified as particular problems. The gaps in the provision of care as highlighted in the National Five-Year Forward View Plans which include ensuring quality of care, seven day working, access targets, local sustainability, artificial mass concerns, workforce issues and the “financial picture” were identified.
The pressures facing each of the identified three services were set out in the Issues Paper as follows:
“A Stroke services: there had been a serious inability to recruit sufficient consultant numbers. In October 2016 this led to the temporary relocation of patient stroke services from STDH to SRH. The specific reason being the inability to recruit sufficient consultant numbers and the ability to recruit a fulltime stroke consultant for more than two years, leaving a single part-time consultant covering the service and little prospect of recruitment.
B Obstetrics and gynaecology: staffing issues led to the closure of the special baby care unit at STDH and maternity services in December 2017 and January 2018.
C Emergency paediatric care: difficulties in recruiting and maintaining a sufficiency of senior doctors to provide the emergency care services at South Tyneside 24/7.”
The Pre-Consultation Business Case (“PCBC”) – 28 June 2017
This was published by the respondents and was available online. This represented phase 1(a) of the Path to Excellence Programme. It describes the potential options for future services reconfiguration. The aims sought were to improve stroke clinical outcomes, to strengthen the safety and quality of maternity care, to ensure the right balance of locally accessible and specialist paediatric care and to produce more sustainable workforce models to retain the services as locally as possible for the longer term.
The document stated that clinically-led design teams had developed potential options for change as part of the service review programme overseen by both CCGs and hospital clinical and non-clinical leaders. A minimum of two potential options for each of the three services had been developed and agreed to be subject to a formal consultation. Each set included one option to develop single-site services at SRH and each included one option to retain appropriate safe service delivery at STDH in order to maximise patient choices.
The options contained within the PCBC were taken from a longer list of options which had been reviewed by design groups in the clinical service reviews. The clinical design process was described at Appendix 5.1 of the document, hurdle criteria were used in order to reduce the list of options. The hurdle criteria were set out as:
i) support sustainability/service resilience;
ii) will it deliver high...
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