R (Smith) v North Eastern Derbyshire Primary Care Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins,MR JUSTICE COLLINS |
| Judgment Date | 15 June 2006 |
| Neutral Citation | [2006] EWHC 1338 (Admin) |
| Date | 15 June 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1957/2006 |
[2006] EWHC 1338 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Collins
Case No: CO/1957/2006
Ms Eleanor Grey & Mr Robert Lazarus (instructed by Leigh Day & Co) for the Claimant
Mr David Pittaway, Q.C. & Mr Andrew Post (instructed by Beachcroft LLP) for the Defendant
Mr Javan Herberg (instructed by The Solicitor, Department of Health) for the Interested Party
This claim seeks to overturn the decision of the defendant to appoint United Health Europe Limited (UHE) to provide general practitioner services in two villages, Creswell and Langwith, in north- east Derbyshire. UHE is associated with United Health Group, an American based health care provider. UHE was established in the United Kingdom in May 2004 and its main Director is a general practitioner who practises in Kingston upon Thames. It will have to recruit GPs to provide the services in question.
There are four ways in which a Primary Care Trust (PCT) can arrange for the delivery of general medical services to a local community. It can provide them directly (which is what is now happening as a result of this claim since the contract with UHE has been stayed pending the outcome). This is called a PCTMS. Otherwise, it can enter into a General Medical Services Contract (GMS) whereby it contracts with a medical practitioner, or partnership (see ss.28Q to 28W of the National Health Service Act 1977). GMS is a nationally negotiated contract. It can enter into a particular contract which is locally negotiated. This is known as a Personal Medical Services Agreement (PMS): and can be with a NHS employee or health care professional as well as with a medical practitioner or a partnership: see s.28D of the 1977 Act. Finally, it can make use of the wide general provisions conferred by s. 16CC(2)(b) of the 1977 Act which enables it to "make such arrangements for [the provision of primary medical services] � as it thinks fit, and may in particular make contractual arrangements with any person". The Department of Health has published guidance on the exercise of such powers, which result in what are called Alternative Provider Medical Services (APMS). The guidance, published in May 2004, states:-
"APMS offers substantial opportunities for the restructuring of services to offer greater patient choice, improved access and greater responsiveness to the specific needs of the community. It will provide a valuable tool to address need in areas of historic under-provision, enable re-provision of services where practices opt out, and improve access in areas with problems with GP recruitment and retention.
PCTs can enter APMS contracts with any individual or organisation that meets the provider conditions set out in Directions. This includes the independent sector, voluntary sector, not-for-profit organisations, NHS Trusts, other PCTs, Foundation Trusts, or even GMS and PMS practices. If PCTs contract with GMS / PMS practices via APMS, the practice would hold a separate APMS contract alongside their GMS / PMS contract.
The PCT will want to ensure that it has transparent, non-discriminatory procedures in place for selecting a contractor, in order to encourage competition."
The proposed arrangement with UHE is an APMS. So far, this use has been relatively common in relation to provision of out of hours services, but it has not as yet been used to any great extent for primary services. There are those who believe that it is an undesirable introduction of private medical services into the NHS. But that cannot be a matter which is to be considered in deciding whether the appointment of UHE was appropriate in this case.
The statutory provision which is central to this claim is s.11 of the Health and Social Care Act 2001. This, so far as material, reads:-
"(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.
(2) This section applies to-
�(b) Primary Care Trusts �"
The explanatory notes state that s.11 confers a 'new statutory duty' to "make arrangements with the aim of involving patients and the public in the planning and decision making processes of that body, in so far as they affect the operation of the health services for which the body is responsible". The Department of Health has issued policy guidance on s.11. This states:-
"'Involving and consulting' has a particular meaning in the context of s.11. It means discussing with patients and the public their ideas, your plans, their experiences, why services need to change, what they want from services, how to make the best use of resources and so on. It is more about changing attitudes within the NHS and the way the NHS works than laying down rules for procedures.
What is important is that involvement and consultation is adequate both in terms of time and contract and appropriate to the scale of the issue being considered. Part of the involvement process may be to discuss with stakeholders (sic) the most appropriate arrangements for any further involvement. For example it may become clear that
+ more effort needs to be made to involve the harder-to-reach groups that may be affected by the proposed change or more information needs to be given; or
+ a formal consultation process lasting for a set period of time is not necessary. �
Patient and public involvement is central to developing any organisation. NHS organisations must recognise and value the benefits of listening and responding to patients and recognise that the patient's experience is the catalyst for doing things differently to improve the way services are delivered.
Real patient and public involvement is not about ticking boxes, it is about NHS organisations developing constructive relationships, building strong partnerships and communicating effectively. For patients' experience of health services to really improve, NHS staff will need to have ongoing and meaningful dialogue with them, their carers and the public about improving and developing services �
The new duty in the continuation of a process that will strengthen accountability to patients and the public and make sure there is transparency and openness in decision making procedure. We must develop and adapt health services around the needs of patients and the public which will build trust and confidence between local communities and the NHS."
It is clear from all this that s.11 has a very wide application. However, the language is somewhat imprecise. When I asked counsel what the words 'involved in' added, I received no satisfactory answer. I make it clear that I do not in the least blame counsel. Mr Pittaway, Q.C. and Mr Herberg submitted and Ms Grey accepted that they could not mean that the public had to be parties to the making of any relevant decisions. Thus 'involved in' really means no more than informed and able to express a view (which adds little to 'consulted on'). What is important is that the public must know what is proposed or what changes are to take place or how the services which affect them are to be operated and must have the opportunity, at least through a representative body, to comment on such matters. Their views must be obtained.
There are a number of statutory refinements which concern scrutiny of a PCT's actions. Section 7 of the 2001 Act provides that overview and scrutiny committees of local authorities (OSCs) should "review and scrutinise, in accordance with regulations �, matters relating to the health service � in the authority's area". Regulation 4(1) of the Local Authority (Overview and Scrutiny Committee Health Scrutiny Functions) Regulations 2002 ( SI2002 No. 3048) provides:-
"� [W]here a local NHS body has under consideration any proposal for a substantial development of the health service in the area of a local authority, or for a substantial variation in the provision of such service, it shall consult the OSC of that authority."
The duty therefore only arises where there is a proposal for a substantial change. An OSC can complain to the Secretary of State if it is not satisfied that adequate consultation has taken place (Regulation 4(5)). I mention those provisions only because they were referred to in argument to draw the distinction between the duty to consult in s.7 and the duty to make arrangements with a view to securing involvement and consultation in s.11 and to make the point that this claim did not concern changes or proposals which were substantial. It has not been suggested that the duty under s.7 arises.
Section 15 of the National Health Service Reform and Health Care Act 2002 introduced a further body which was to represent the public in relation to the activities of inter alia PCTs. It provides, so far as material:-
"15(1) The Secretary of State shall establish a body to be known as a Patients' Forum �
(b) for each PCT
(3) A Patients' Forum must-
(a) monitor and review the range and operation of services provided by, or under arrangements made by, the trust for which it is established,
(b) obtain the views of patients and their carers about...
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