R (Smith) v North Eastern Derbyshire Primary Care Trust
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE KEENE |
| Judgment Date | 23 August 2006 |
| Neutral Citation | [2006] EWCA Civ 1291 |
| Docket Number | C1/2006/1450 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 August 2006 |
[2006] EWCA Civ 1291
Lord Justice May
Lord Justice Keene
C1/2006/1450
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)
Royal Courts of Justice
Strand
London, WC2
MR DAVID WOLFE AND MR ROBERT LAZARUS (instructed by Leigh Day & Co., London EC1M 4LB) appeared on behalf of the Appellant
MR ANDREW POST (instructed by Beachcroft Wansborough, Park Square, Leeds) appeared on behalf of the Respondent
MR JAVAN HERBERG appeared on behalf of the Secretary of State
( Approved by the Court)
Langwith and Creswell are two small former mining villages in North East Derbyshire. North East Derbyshire Primary Care Trust is responsible for providing general practitioner services to the villages. There have in the recent past been problems. The area was described by Collins J, against whose decision of 15th June 2006 this appeal is brought, as deprived. Until about three years ago a Dr Khan ran a general practitioner practice which covered Langwith where the claimant, Pam Smith, lives. Dr Khan had his main surgery in Creswell and a branch surgery at Langwith. The service provided by Dr Khan was satisfactory but he retired. The practice was then taken over by a nurse and her husband, Mr and Mrs Lodge, who hired in doctors. This did not work out well and in 2005 the Parish Council expressed concerns to the PCT in letters which regrettably seem not to have been answered. However, on 24th October 2005 the PCT served notice terminating the Lodge's engagement. The PCT then initiated and carried out a tender process which resulted in a decision by the PCT, announced on 23rd December 2005, to move towards engaging United Health Europe Limited ("UHE") , an American-based health care provider with a United Kingdom Director based in Kingston-upon-Thames to provide GP services for these North East Derbyshire villages. One contender for that appointment who was not short listed was a Dr Elizabeth Barrett, a partner in a neighbouring practice.
Further details of what I have briefly described may be found in paragraphs 8 to 14 of Collins J's judgment at [2006] EWHC 1338 Admin.
UHE were not then and have not yet been engaged but the decision was that they should be negotiated with as the preferred bidder. The engagement of UHE was intended to result in what are called "alternative provider medical services" under section 16CC(2) (b) of the National Health Service Act 1977 (as amended) . Mercifully this appeal does not require the court to deliberate as to what that in detail means, but see paragraph 2 of Collins J's judgment.
Pam Smith, the claimant, challenges and asks the court in judicial review proceedings to quash the decision of 23rd December 2005. Her ground for doing so is that the PCT had failed to perform its statutory duty of consultation under section 11(1) of the Health and Social Care Act 2001. That section provides:
"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 section applies to Primary Care Trusts—see section 11(2) .
The Department of Health has issued policy guidance on section 11, parts of which are reproduced in paragraph 3 of Collins J's judgment. There are a lot of words in this which do not seem to me, for present purposes, to illuminate the duty to involve and consult patients whose general import is clear.
The defendants and the Secretary of State contended unsuccessfully before the judge that section 11 did not apply to the decision to negotiate with UHE. The judge held that it did, not least section 11(1) (c) . There is no cross-appeal challenging this part of the judge's decision, nor of his further decision that the PCT were in breach of their section 11 duty to consult. There was a representative of patients' interests on the selection panel. There had been a meeting on 8th November 2005 with a patients' participation group but those who attended were required to sign a confidentiality agreement and there was no record of what was discussed. As the judge said, it was not entirely clear to what extent the discussions looked to the future, rather than dealt with the reasons for parting company with Mr and Mrs Lodge. However that may be, there was no sufficient involvement of or consultation with patients, including the claimant, and that is now accepted.
The claimant, therefore, was successful in her challenge to the lawfulness of the decision to negotiate with UHE but she failed to persuade the judge to grant her any relief. He dismissed her claim although he awarded her 75 per cent of her costs. The judge's main reasons for refusing relief are in paragraphs 26 and 27 of his judgment where he said:
"There was an alternative remedy. Judicial review is always regarded as a last resort. I am, I am afraid, unimpressed by the contention that the claimant and, presumably, those advising her were unaware of the existence of the Patients' Forum. No attempt has been made to seek to persuade it to intervene. Ms Grey suggests that that remedy would have taken a great deal of time to pursue. If the Patients' Forum had taken the matter up on the claimant's behalf, I find it difficult to believe that the PCT would have gone ahead regardless. But, if it did or if the Forum did not accept that s.11 was in play, the remedy of judicial review could then have been pursued. I think that there is force in Mr Herberg's submission that the claimant should have tried in that way to avoid judicial review.
I have to ask myself whether, notwithstanding the failure to comply with s.11, relief should be granted. I very much doubt whether, if the PCT had received and considered the claimant's views, it would have reached a different decision. There is no reason why UHE should not provide the sort of service the claimant wants and these proceedings should at least have alerted the PCT to the need to ensure that the contractual terms are such as to achieve what is wanted. These considerations coupled with the existence of an alternative remedy which could have avoided these proceedings persuade me that it would not be appropriate to grant any relief."
So, the judge gave two reasons: there was an alternative remedy and representations by the claimant would probably have made no difference. I do not agree with submissions in writing by Mr Pittaway QC on behalf of the PCT that the judge's primary reason for the refusal of relief was the existence of an alternative remedy. If anything I read the weight of his decision as being the other way round and I note that Mr Pittaway made a proper concession, which Mr Post accepted also in his oral submissions today, that the judge's conclusion that consultation would probably have...
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