Ron Glatter v NHS Herts Valleys Clinical Commissioning Group
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 06 January 2021 |
| Neutral Citation | [2021] EWHC 12 (Admin) |
| Docket Number | Case No: CO/3383/2019 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2021] EWHC 12 (Admin)
Mr Justice Kerr
Case No: CO/3383/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe QC and Emma Foubister (instructed by Leigh Day) for the Claimant
Jeremy Hyam QC (instructed by Hempsons) for the Defendant
Fenella Morris QC and Peter Mant (instructed by Capsticks Solicitors LLP) for the Interested Party
Hearing dates: 27 and 28 October 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In this judicial review application, the claimant seeks to establish that decisions made by the defendant ( the CCG) in May and July 2019 with the support of the interested party ( the Trust) about reorganising National Health Service ( NHS) hospital provision in Hertfordshire, were unlawful. The essence of the claim is that the CCG was obliged to conduct a public consultation before making the decisions and did not do so.
The claimant coordinates the New Hospital Campaign Group ( NHCG) which favours the building of a new emergency and specialist hospital on a clear site in Hertfordshire (a new build). The first decision challenged, made on 30 May 2019 ( the first decision) was to select four of eight options for further consideration and rule out the other four. The four ruled out options included two versions of the new build option, which was considered too expensive.
The second decision challenged, made on 11 July 2019, was to choose one of the four remaining options: to spend money on improvements to services at three existing hospitals, Watford General Hospital ( Watford General), St Albans City Hospital ( St Albans City) and Hemel Hempstead Hospital ( Hemel Hempstead). The complaint is that the second decision too was taken without public consultation which could have led to a new build being approved instead.
The CCG and the Trust say they were under no statutory or common law duty to consult publicly. Their obligation, fully performed, was to “involve” service users in “development and consideration of proposals …. for change” (National Health Service Act 2006, as amended ( the 2006 Act), sections 14Z2(2)(b) and 242(1B)(b)). They were not required to consult on the proposals for change, especially those they rationally considered unaffordable.
They also submit that even if the CCG should have undertaken a public consultation, relief should be refused because it is highly likely the outcome would have been substantially the same (section 31(2A) of the Senior Courts Act 1981) and because granting relief now would serve no useful purpose and would be contrary to good administration. The new build options were indeed too expensive; not enough money was available to make them viable.
The Facts
In 2003, the then Bedfordshire and Hertfordshire Strategic Health Authority consulted on proposals that led to a decision by a joint committee with delegated powers, not at the time implemented, to construct (among other changes) a new build hospital at Hatfield. In November 2006, the Trust decided to reorganise its services, following a public consultation exercise. The new hospital at Hatfield has not been built.
The decisions in 2003 and 2006 are not directly relevant but are part of the background. Decisions made in 2006 by the Trust led to a judicial review challenge by the chair of a different campaign group concerned to preserve the presence and quality of certain services at Hemel Hempstead which were intended to be moved to Watford General. That challenge failed: see Walker J's judgment of 9 July 2007 in R (Bullmore) v. West Hertfordshire Hospitals NHS Trust [2007] EWHC 1636 (Admin).
During the following nine years or so, various proposals were debated and publicly discussed. It is not necessary to go through the detail. The need to reorganise NHS hospital services in west Hertfordshire continued to be recognised. Parts of the Trust's hospital estate were deteriorating and investment was needed, as everyone agrees. The process became protracted. There was a public involvement exercise in 2014 and 2015.
In February 2017, the Trust published a Strategic Outline Case ( SOC) on stating its proposals for reconfiguring acute services. In the decision making process leading to investment in changes to NHS provision, the SOC is the first stage for securing funding provision; next comes the Outline Business Case ( OBC) and, finally, the Full Business Case ( FBC). There are detailed definitions of these terms in documents issued by the Treasury. I do not need to set them out because the titles indicate what they should contain.
The Trust's 2017 SOC lamented the poor state of its hospital estate: 80 per cent of it was assessed as in poor condition and “no longer fit for purpose”. A list of 14 options was set out. They included several versions of a new build option on a clear site. There were cost estimates, supported by external consultants. The estimates for the new build options ranged from £789 million to £812 million. The preferred option, at £565 million, was redevelopment of emergency care at Watford General and planned care at St Albans.
The CCG approved the Trust's 2017 SOC, but it did not find favour with the regulator of the NHS, formerly called Monitor but by 2017 called NHS Improvement. The SOC, the regulator explained, was unlikely to succeed in securing funding because of the amount of capital expenditure required. It was necessary to reconsider the proposals and make recommendations that were containable within a capital expenditure limit of £350 million, a threshold linked to the Trust's annual turnover.
The reconsideration was described in the contemporary documents as a “refresh” of the 2017 SOC. Refresh is civil service jargon for reconsideration. NHS Improvement recommended to the Trust in a letter of 13 June 2018 that it:
“reconsiders its SOC assumptions and financial projections for each of the eight shortlisted options and seeks expert advice regarding blended and phased funding options potentially including land sale proceeds, Section 106 contributions and the potential for private finance …. where elements of the project relate to new build and can be progressed as discrete and separable elements of the overall project.”
The CCG and the Trust issued a joint statement on 4 October 2018 explaining the need to revisit the proposals in view of the capital expenditure constraint and consequent need for a “phased approach”. The preference continued to be “retaining emergency services at Watford” rather than “at a new location”. That view was based on the “guiding principles” of “deliverability”; “[q]uality”; and “[s]ustainability”. The revised SOC was to be ready in early 2019; there would be “continued engagement with all stakeholders as plans are developed further”.
Public meetings explaining the process were held with interested parties in October and November 2018. Mr Robert Scott, an articulate supporter of the NHCG with experience of conducting financial appraisals and of the construction industry, contributed an “interim appraisal” document in November 2018. It was not his first such contribution.
In early December 2018, the CCG and the Trust met NHS Improvement and NHS England. They were told that their bid in the next spending review settlement must be constructed so as to be sufficient to cover their requirements for the following ten years and should be submitted in the period from April to July 2019. The funding would be long term public dividend capital, serviced by payment of a charge representing the notional cost of servicing the debt. The maximum capital available would be the amount of the Trust's annual turnover.
From December 2018 to February 2019, extensive discussions took place between the CCG and the Trust to work up the bid for funding. The NHCG wished to be involved in the process and made this clear in a series of emails in January 2019 making various enquiries about what was going on internally within the CCG and the Trust and in contacts between the two bodies. The claimant and the NHCG sought access to documents generated in these discussions which were not made public.
At a public meeting on 29 January 2019, representatives of the CCG and the Trust stated that some of the options previously under consideration were likely to be ruled out because of the affordability cap of £350 million imposed at national level. Mr Scott questioned the approach of the CCG and the Trust to the issue of affordability. He submitted in correspondence in February 2019 that the cost of a new build option was overstated while other aspects of the costing were understated. He sought a meeting but that request was not granted.
In addition to public meetings, provision of information on the websites of the CCG and the Trust, correspondence and social media discussion, a body called the “stakeholder evaluation panel” was established. Its membership was confirmed at a public meeting on 27 February 2019 and included the claimant's wife. It was described thus in a later report in July 2019:
“A stakeholder evaluation panel was formed to support the development of and consider the options shortlist. This was an advisory group, made up of public and patient representatives, clinicians and managers, local...
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