The Queen (on the Application of Lyn Buckingham) v NHS Corby Clinical Commissioning Group
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 01 August 2018 |
| Neutral Citation | [2018] EWHC 2080 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1605/2018 |
| Date | 01 August 2018 |
[2018] EWHC 2080 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre,
2 Park Street, Cardiff, CF10 1ET
HIS HONOUR JUDGE Jarman QC
Case No: CO/1605/2018
and
Ms Sarah Sackman and Mr Aidan Wills (instructed by Leigh Day) for the Claimant
Ms Fenella Morris QC and Ms Rose Grogan (instructed by Mills & Reeve LLP) for the Defendant
Mr David Lock QC and Mr Richard Clarke instructed by the Interested Party
Hearing dates: 23 July 2018
Judgment Approved
HH JUDGE Jarman QC:
The Claimant Mrs Buckingham is a founder member of the Save Corby Urgent Care Action Group (the Group), founded in 2017 after press reports that the Urgent Care Centre (the Centre) in Corby may be closed. She challenges a decision made on 30 January 2018 (the Decision) at an extra-ordinary meeting of the governing body of the Defendant (CCG) to change the provision of health services provided by the Interested Party (Lakeside) at the Centre and to rename it a Same Day Access Hub (the Hub). CCG is under a statutory duty to commission acute and community health care services under part 1 of the National Health Service Act 2006 (the 2006 Act), as well as primary healthcare services under part 4.
Mrs Buckingham was given permission to bring this challenge on all three grounds by Garnham J on 19 June 2018. At the same time, he gave Lakeside permission to advance the additional grounds set out in its acknowledgment of service and limited its oral submissions to no more than 30 minutes. He expedited the hearing of the claim to be heard in Cardiff in the week commencing 23 July 2018.
The three original grounds of challenge are as follows. First, there was a legitimate expectation that CCG would consult users or potential users of the Centre before making the Decision and failed to do so without good reason. Second, the failure to consult or at least involve such users was a breach of the duty imposed on CCG to do so by section 14Z2 of the 2006 Act. Third, when making the Decision CCG failed to have due regard to the need to reduce inequalities between patients with respect to their abilities to access health services pursuant to section 14T of the 2006 Act and/or to the differential impacts on people with protected characteristics within the meaning of the Equality Act 2010 (the 2010 Act).
Lakeside challenges the decision on three additional grounds. Fourth, the failure to consult amounts to a breach by CCG of its duty under section 14Z13 of the 2006 Act which requires consultation in respect of a commissioning plan prepared by CCG under section 14Z11. After some prevarication the final position of CCG is that the plan to fulfil these statutory duties is a two-year plan prepared adopted in 2017. That includes the proposal to change health care provision at the Centre but has not been consulted upon. Fifth, in making the Decision CCG made a number of fundamental errors, the most serious of which was to use a tool called the Manchester Triage Tool (MTT) to conclude that 88% of patients seen at the Centre could have been routinely dealt with by their GPs. There is common ground in the medical evidence filed in these proceedings that the MTT is a tool to assess the level of urgency of patients attending A&E whose conditions are true accidents or emergencies and excludes patients whose conditions do not fall into that category. Sixth, a conflict of interest was not identified, let alone managed, in making the Decision. The CCG Governing Body has GP members who are already contracted to provide appropriate GP services in Corby. As one of the primary purposes of the proposed Hub is to supplement the health services provided by local GP practices, in effect CCG is cutting acute care services to provide GP services which some of the members of CCG Governing Body are already contractually obliged to meet.
Each of these grounds is disputed by CCG. First, it is accepted that for some months before the Decision, CCG intended to consult and made public statements to that effect, but those were made at a time when a number of options, including closure, were being considered. Moreover, some of those statements were qualified by reference to assurance or assessment by NHS England (NHSE). The idea of the Hub re-emerged at a public workshop in December 2017 and the view was taken that the health services to be offered were not significantly different from those already offered at the Centre. CCG has a raft of statutory duties which it must comply with, including a duty to exercise its functions effectively, efficiently and economically. Both NHSE and the Chair of the Overview and Scrutiny Committee (HOSC) of the local authority were content that the proposed consultation was no longer necessary. Even if there were unqualified statements that there would be consultation, there was good reason why this was not done. Second, on the facts there was sufficient involvement with the public, in particular at the public workshop in December 2017 and at the public meeting on 30 January 2108 where Mrs Buckingham amongst others were present and took part in a questions and answer sessions before the Decision was taken. Third, an Equality Impact Assessment (EIA) was carried out by CCG which was adequate in the circumstances.
In respect of Lakeside's additional grounds CCG submit as follows. Fourth, upon a proper interpretation of the statutory provisions as to the commissioning plan, it is not a prerequisite to consult before any decision to reconfigure the provision of health services. Fifth, for an error of fact to vitiate a public law decision the error must be uncontentious and objectively verifiable. Here there was a reasonable body of opinion to support the CCG's contention that the vast majority of people attending the Centre could have been dealt with routinely by their GPs. Sixth, CCG have a policy to deal with conflicts of interest which are inherent in the system and that policy was complied with in the present case.
Before I deal in turn with those issues I shall set out the background. The Centre was set up in 2013 by CCG's predecessor who contracted with Lakeside for the provision of health services there. When in the following year CCG assumed the responsibility for commissioning such services the contract was assigned to it, which contractual arrangements were due to end in March 2017. These have now been extended to the end of March 2019.
The Centre is a purpose-built facility to treat patients with an urgent and necessary need for health care and accordingly offers services not provided in primary health care, including x-ray, ultrasound, resuscitation facilities and observation bays. Its facilities are open 7 days a week and are available on a walk-in basis to all patients. It is staffed by GPs and nurses experienced in emergency care, who carry out triage there.
Unsurprisingly it has proved very popular with use of the Centre increasing each year so that currently there are about 70,000 attendances. Some of these are made by people who attend many times. This is against a background where some patients experience difficulty in making appointments with their GPs, due to a failure of recruitment to keep up with the growing population of Corby.
In the early part of 2017 CCG began to engage with the public and stakeholders to test views about aspects of local health care services, including primary care services. It engaged consultants called Arch Communications (UK) limited (Arch) to assist with this engagement. The initial phase, known as the pre-engagement phase, included the development of a community database, a survey of about 700 people and workshops with patients, public and community groups. Findings from this engagement were reported to the CCG Governing Body in June 2017, with key themes including service quality and ease of access.
This was disrupted by, among other events, a legal dispute between CCG and Lakeside regarding the provision of services at the Centre which was eventually determined. At a public meeting of the CCG Governing Body on 29 August 2017, two documents were considered. One was an Urgent Care Centre Review and the other was a Patient Public and Stakeholder Engagement and Consultation Framework (the Framework). The latter proposed a more intense engagement with all key stakeholders about the challenges faced by CCG in relation to primary and urgent care services. There then followed the following sentences:
“All stakeholder input gathered during this period will be used to inform the shaping of options to be put out to public consultation.
November to January
Subject to assurance process, public consultation about potential changes in care services will be launched on 1 November. It will run for 13 weeks (three months), to 31 January 2018. Building on the earlier period of engagement, it will include: A consultation document outlining how we got to where we are. It will provide information to help the public understand the process and options, and an outline of the options themselves. People will be asked to indicate which option they prefer and why.”
The CCG Governing Body adopted the Framework at the meeting. It envisaged a second pre-consultation phase from September to October and then the public consultation as set out above. At this stage, closure of the Centre was still an option. Just under 40 engagement events were held at various venues. In October two workshops were organised attended by 5 and 19 people respectively. In the former, there was unanimous support for change, and recognition for improved need for ease of navigation. In the latter there was strong support for the...
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