The Queen (on the application of Jayne Dawson) v United Lincolnshire Hospitals NHS Trust

JurisdictionEngland & Wales
JudgeMr Justice Linden
Judgment Date16 April 2021
Neutral Citation[2021] EWHC 928 (Admin)
Docket NumberCase No: CO/3239/2020
CourtQueen's Bench Division (Administrative Court)
Date16 April 2021

[2021] EWHC 928 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Linden

Case No: CO/3239/2020

Between:
The Queen (on the application of Jayne Dawson)
Claimant
and
United Lincolnshire Hospitals NHS Trust
Defendant

Mr Vikram Sachdeva QC, Ms Catherine Dobson and Ms Clara Benn (instructed by Irwin Mitchell LLP) for the Claimant

Ms Fenella Morris QC and Mr Peter Mant (instructed by Capsticks) for the Defendant

Hearing date: 4 March 2021

Judgment Approved

Mr Justice Linden

Introduction

1

As is well known, in the first, “Manage”, phase of the government's response to the COVID-19 pandemic, in early 2020, NHS care providers were obliged to give priority to the treatment of COVID-19 patients. There was also a fall in patients attending hospitals for non COVID-19 related treatment because they were shielding or, it was thought, they were fearful of infection with COVID-19 whilst at hospital.

2

On 29 April 2020, at the beginning of the government's second, “Restore”, phase of its response to the pandemic, NHS England and NHS Improvement (“NHSEI”) therefore issued a letter to all NHS care providers. This required that NHS Trusts “step up” non COVID-19 urgent services as soon as possible over the following six weeks, and work across local systems and regional teams over the next 10 days to make judgements about whether there was further capacity for at least some routine non-urgent elective care.

3

In response to this letter, on 11 June 2020, the Defendant Trust decided to designate Grantham and District Hospital (“the Hospital”) a COVID-19 free “Green” site from 22 June 2020 until at least 31 March 2021. In broad terms, this meant that there would be no COVID-19 related treatment on the site. There would be an increase in elective treatment and chemotherapy at the Hospital, and cancer and other elective surgery would be transferred to the Hospital from other hospitals in Lincolnshire. There would also be increased capacity for urgent diagnostics.

4

In order to minimise the risk of COVID-19 infection of patients using these services, it was decided that all patients would be required to have a known COVID-19 status on admission. Unplanned admissions and certain other outpatient services would be transferred to other hospitals and locations in the area. It was therefore necessary to replace the existing Accident & Emergency (“A&E”) department with a walk-in Urgent Treatment Centre (“UTC”) located in a separate part of the site in order to minimise the risk of COVID-19 infection as a result of frequent and unpredictable footfall. The UTC would deal with minor ailments and injuries, but those with more serious injuries or conditions would need to travel to one of the other hospitals in Lincolnshire.

5

The Decision was to be subject to quarterly reviews. These reviews have taken place and the Hospital remained a Green site at the time of the hearing which I conducted, albeit modifications had been made to the model in the light of experience of how it worked. At the time of the hearing, there was also to be a decision by the Trust, which was scheduled for 16 March 2021, as to whether the Hospital would remain a Green site. At the time of writing, I do not know the outcome of that decision.

6

Although alternative provision was made, the Decision has caused significant inconvenience to certain users of the services of the Hospital, including the Claimant. In addition to the closure of the A&E department, a variety of outpatient services were no longer to be provided on site, and two wards of general medical beds (i.e. approximately 70 beds) were no longer to be available. It was estimated that although the majority of the patients who attended the A&E department each year would be able to make use of the UTC, 4600 (19%) would now have to be treated at other hospitals. Around 870 patients who attended the UTC would require admission and be transferred to another site and 1,198 would no longer be able to make use of beds at the Hospital which were to be withdrawn.

7

I am told that many of the users of the Hospital are vulnerable or elderly and many are not well off and do not have cars. To illustrate the sorts of difficulties which the Decision has caused, the Claimant is aged 54. She suffers from spina bifida and hydrocephalus and uses a wheelchair. The shunt implanted for her hydrocephalus means that at any time she may need emergency surgery, as she has done in the past. She also has osteomyelitis in her leg, leading to frequent infections in her shin bone. She is in acute pain, and the effect of the Decision was that she had to travel 27 miles each way to Boston rather than 7 miles each way to Grantham for consultant appointments.

The issues in the Claim

8

At an oral hearing on 3 December 2020, Collins-Rice J gave permission to the Claimant to argue two grounds, namely that:

i) In coming to its decision, the Defendant breached section 242(1B)(b) and (c) of the National Health Service Act 2006 by failing to make arrangements which secured that service users were involved (a) in the development and consideration of the proposals for the designation of the Hospital as a Green site and (b) in the making of the Decision itself (“ Ground 1”);

ii) The Decision was irrational or disclosed an improper purpose or was insufficiently reasoned. In the event, before me the challenge on Ground 2 was limited to a complaint that the Decision was inadequately reasoned which, it was said, “gives rise to the inference that the decision was irrational and/or was taken for an improper purpose”. (“ Ground 2”)

9

Permission was refused in respect of a proposed claim against NHS Lincolnshire Clinical Commissioning Group.

10

The Claimant's case is that the Decision had a significant impact on service users. Her principal complaint is that, she argues, service users could and should have been involved in the process which led to the Decision from 12 May 2020, or 22 May 2020 at the latest, whereas the proposal which led to the Decision was not announced to the public until a press release at 3pm on 8 June 2020. The Decision was then taken at a live streamed meeting of the Trust Board on 11 June 2020 at which 30 minutes were allocated to answer written questions submitted in advance by the public. The Claimant says that the duty, under section 242(1B) of the 2006 Act, to involve service users in decision making of this nature is important and yet it appears to have been overlooked by the Defendant. Whether or not as a result of it being overlooked, the arrangements made by the Defendant were wholly inadequate for the purposes of section 242(1B). She and others also suspect that the Trust's approach was influenced by a longstanding agenda to close the A&E department at the Hospital. Whereas initially the Claimant sought to quash the Decision, pragmatically given that things have moved on, she now confines the relief which she seeks to declaratory relief.

11

The Trust denies both Grounds. It says that it was aware of its obligations under section 242 of the 2006 Act and it complied with them. The pandemic made extraordinary demands on Trust personnel. The deadline for responding to the 29 April 2020 NHSEI letter was a tight one and it was not feasible or appropriate to do more to involve the public in the decision making process given that the Trust's proposed response to that letter was undergoing a constant process of modification and might not have gone ahead. Service users were involved at the earliest practical opportunity, and the arrangements which were made were adequate in the circumstances given, also, the temporary nature of the decision, the fact that it was to be kept under review and the fact that service users had the opportunity to express their views after the Decision had been taken and implemented. There was no agenda other than to respond to the NHSEI letter of 29 April 2020.

12

The Trust also argues that the Claim is academic given that the arrangements at the Hospital have been modified since 11 June 2020 and there have been opportunities for service users to comment on the Green site model since then. It was said that the decision on 16 March 2021 was likely to change the landscape further. The questions raised by the Claim therefore relate to the circumstances, and the Trust's actions, leading up to 11 June 2020 and are no longer of any consequence. Moreover, submits the Trust, relief should in any event be refused on the grounds that greater involvement of service users would not have substantially altered the outcome.

The Hearing .

13

The hearing took place over Microsoft Teams but was a public hearing. Mr Vikram Sachdeva QC, Ms Catherine Dobson and Ms Clara Benn appeared for the Claimant. Ms Fenella Morris QC and Mr Peter Mant appeared for the Trust.

14

The Claimant supported her case with a witness statement dated 14 August 2020, and there were statements from three other service users who gave evidence of how they were affected by the Decision. There were also witness statements from a member of staff at the Hospital and the chair of the SOS Grantham Hospital campaign group, Ms Charmaine Morgan, who is also a District Councillor on South Kesteven District Council.

15

Mr Andrew Morgan, the Chief Executive of the Trust, provided three witness statements, dated 2 October 2020, 24 December 2020 and 17 February 2021 respectively, in support of the Defendant's case. There was also a witness statement from Mr Turner, the Chief Executive and Accountable Officer of...

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    • Queen's Bench Division (Administrative Court)
    • 23 February 2022
    ...117 Linden J considered the similarly worded duty under section 242 of the 2006 Act in R (Dawson) v United Lincolnshire Hospitals [2021] EWHC 928 (Admin); [2021] PTSR 1474. He held that (i) the section 242 duty may be discharged by “standing machinery for service user involvement in the f......

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