Royal Brompton & Harefield NHS Foundation Trust v (1)Joint Committee of Primary Care Trusts (2)Croydon Primary Care Trust and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Owen |
| Judgment Date | 07 November 2011 |
| Neutral Citation | [2011] EWHC 2986 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 November 2011 |
| Docket Number | Case No: CO/2440/2011 |
[2011] EWHC 2986 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Owen
Case No: CO/2440/2011
Alan Maclean QC and David Scannell (instructed by Hempsons Solicitors) for the Claimant
Neil Garnham QC and Marina Wheeler (instructed by Capsticks Solicitors LLP) for the Defendants
The claimant, the Royal Brompton and Harefield NHS Foundation Trust (the RBH Trust) seeks to quash as flawed and unlawful a consultation by the first defendant, the Joint Committee of Primary Care Trusts (the JCPCT) concerning the reconfiguration of paediatric congenital cardiac services (PCCS) in England.
The RBH Trust is a specialist heart and lung centre based at the Royal Brompton Hospital London and Harefield Hospital, Middlesex. It is the largest specialist heart and lung centre in the UK and among the largest centres in Europe. Its hospitals have, for many decades, been at the forefront of specialised treatment for complex heart and lung disease. Its paediatric service provides a specialist service for children's heart and lung disease and comprehensive paediatric critical care services.
On 29 May 2008 the National Health Service Medical Director, Sir Bruce Keogh, acting on behalf of the National Health Service Management Board, requested the NHS National Specialised Commissioning Group (NSCG) to review the provision of paediatric congenital cardiac services, a review that came to be called the 'Safe and Sustainable Review' (the Review). In 2010 the JCPCT was established as the formal consulting body with responsibility for the conduct of the consultation on the Review and for taking decisions on issues the subject of the consultation.
On 1 March 2011, the JCPCT published a Consultation Document entitled "Safe and Sustainable: A New Vision for Children's Congenital Heart Services in England" (the Consultation Document).
The central proposal in the Consultation Document is that the number of centres providing paediatric cardiac surgical services be reduced from eleven to either six or seven, and that the paediatric congenital cardiac service be reconfigured into one of four national configuration options. Each of the four options includes two London surgical centres, namely Evelina Children's Hospital (Evelina) and Great Ormond Street Hospital for Children (GOSH).
The claimant challenges the consultation process on the basis that the decisions to exclude a three London centre option from the proposed options, and to exclude the RBH Trust from the preferred two London centre options are legally flawed. By its application for judicial review the RBH Trust seeks a declaration that the consultation is unlawful, and an order that it be quashed.
The application for judicial review was issued on 16 March 2011. Permission was granted at an oral hearing on 15 July 2011 by Burnett J, who also considered, but rejected, an application for interim relief, an assurance having been given on behalf of the defendant that the decision to be taken following the consultation process would not be taken pending judgment on the claim.
The Legal Framework
The Decision Making Structures within the NHS
It is necessary first to set the context within which the Review has been undertaken. 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.
PCTs commission services from 'providers', including NHS Foundation Trusts to meet the needs of the populations for which they are responsible.
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".
Paragraph 10.3.2 of the Department of Health's Overview and Scrutiny of Health Guidance provides that:
"…where a proposed service change spans more than one PCT, they will need to agree a process of joint consultation. The Board of each will need to formally delegate responsibility to a Joint Committee, which should act as a single entity. Following consultation the Joint PCT Committee will be responsible for making the final decision on behalf of the PCTs for which it is acting."
Specialised paediatric cardiology and cardiac surgery services are "specialised services", as defined in the National Specialised Services Definition Set. Specialised services are commissioned regionally by Specialised Commissioning Groups ("SCGs"), which are constituted as joint committees of the PCTs in their catchment area. There are ten SCGs in England corresponding to the ten Strategic Health Authorities.
The NSCG coordinates the work of the ten SCGs and oversees pan-regional commissioning where a specialised service has a catchment area or population greater than that of a single SCG.
The Requirements of a Lawful Consultation
The requirements of a lawful consultation were identified by the Court of Appeal in R v North & East Devon HA Ex parte Coughlan [2001] QB 213. The judgment of the court was given by Lord Woolf MR.
"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 Borough Council, Ex parte Gunning (1985) 84 LGR 168."
"112.…it has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."
The requirements of a lawful consultation identified by Lord Woolf reflect the underlying requirement of fairness to those who may be affected by the decision to which the consultation is directed.
The requirement that consultation must be at a time when proposals are at a formative stage can be expressed as a requirement that the decision maker has not pre-determined the issue upon which he goes out to consultation, i.e. that he has an open mind. That said, and as Mr Garnham QC submitted in the course of argument, to have an open mind does not mean an empty mind.
As Lord Woolf observed at paragraph 112 of Coughlan, the obligation on the consulting authority is to let those with a potential interest in the subject matter know in clear terms what the proposal is, and why it is under consideration. Where a number of options are under consideration by the decision maker, it is properly open to him to identify the option or options that he favours, provided that his mind is open to the possibility that further information or argument may lead to a different conclusion.
Thus in Sardar & Others and Watford Borough Council [2006] EWHC 1590 (Admin), Wilkie J observed at paragraph 29:
"29.…the description "a formative stage" may be apt to describe a number of different situations. A Council may only have reached the stage by identifying a number of options when it decides to consult. On the other hand it may have gone beyond that and have identified a preferred option upon which it may wish to consult. In other circumstances it may have formed a provisional view as to the course to be adopted or may "be minded" to take a particular course subject to the outcome of consultations. In each of these cases what the Council is doing is consulting in advance of the decision being consulted about being made. It is, no doubt, right that, if the Council has a preferred option, or has formed a provisional view, those being consulted should be informed of this so as better to focus their responses. The fact that a Council may have come to a provisional view or has a preferred option does not prevent a consultation exercise being conducted in good faith at a stage when the policy is still formative in the sense that no final decision has yet been made…"
Similarly in R (Medway Council & Others) v Secretary of State for Transport [2002] EWHC 2516 (Admin), Maurice Kay J held that:
"26. In my judgment, subject to other issues such as those raised by the other grounds of challenge in this case, the Secretary of State was entitled to proceed in that...
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