09 OCT 2014
Flatley v Hywel DDA University Local Health Board & Anor  EWHC 2258 (Admin); (2014) PLLR 082
Queen’s Bench Division, Administrative Court, Hickinbottom J
10 July 2014
The mere consideration or preference of certain options prior to a consultation on health service reform did not make decisions taken as a result of this consultation unlawful.
(1) The claimants challenged decisions made by the Welsh ministers with regard to reforming health services. The claimants argued that the consultation process failed to give people a proper opportunity to present their case on the reform proposals. The claimants also sought to demonstrate violations of the Equality Act based on the differing impacts of the service changes on different populations.
(2) In November 2011, the Welsh government published a document entitled “Together for Health: A 5-Year Vision for the NHS in Wales.” This document set out the policy that the way health services were provided would need to be reviewed to cope with rising demand and costs. The work on this programme has been largely carried out through local health boards (LHBs), but in some circumstances, the Minister for Health and Social Services has had the final word. The government already had an ongoing programme to put a greater focus on specialised health services and improve access to less specialised services in the community.
(3) The claimants were regular service users at Welsh hospitals. The first claimant is the secretary of an association called Save our Services Prince Philip Action Network, and he challenged two decisions concerning service changes to emergency care at Prince Philip Hospital in separate claims. He challenged a decision of the Hywel Dda University Local Health Board (“the LHB”) on 15 January 2013 to cease to have emergency care facilities with on-site doctors in the unit at all times. After a consultation process, the LHB changed the arrangements in favour of nurse-led facilities with doctor support from a hospital 20 miles away via telephone and electronic links.
(4) The first claimant also challenged a decision of the Minister on behalf of the Welsh Ministers on 24 September 2013 in respect of those changes following a referral to him by the Hywel Dda Community Health Council (“the CHC”); the Minister changed the decision of the LHB in favour of a model with on-site doctors at the emergency facility.
(5) The second claimant challenged decisions of the Minister on 24 September 2013 and 21 January 2014 in respect of changes to neonatal care at Withybush Hospital, again following a referral to him by the CHC. In this case, the Minister determined that there would be only a midwife-led unit at Withybush and an enhanced neonatal facility further away.
(6) The first claimant’s first challenge was that the decision-making process around the service changes was legally flawed on three primary grounds:
(7) Ground (1): the consultation process failed to give consultees a proper opportunity to present their case on the proposals in three respects:
(a) the LHB had predetermined (or clearly preferred) that the change would happen prior to the consultation and failed to consult at a formative stage with an open mind, as they were legally obliged to do;
(b) the LHB decision deferred fundamental and highly controversial issues (including transportation of patients) to the implementation phase, barring a full consideration of the change;
(c) the LHB failed to give consultees sufficient time and information to enable them properly to engage with the process.
(8) Ground (2): in breach of a legitimate expectation, the LHB resiled from a promise to appoint an independent chair of the board implementing the proposal.
(9) Ground (3): the LHB failed to have due regard to equality matters as required by section 149 of the Equality Act 2010.
(10) The first claimant’s second claim and the second claimant’s claim both arise out of the Minister’s decisions, and again had three primary grounds.
(11) Ground (4): the Minister fundamentally misunderstood his obligations and powers under the relevant statutory regime and at common law with regard to a final decision on the proposal for change of services and failed to appreciate that the matters that he was required or entitled to take into account included deficiencies in the LHB's consultation process.
(12) Ground (5): the illegality in the LHB consultation process infects the Minister's subsequent decision.
(13) Ground (6): the Minister failed to discharge his public sector equality duty under the Equality Act 2010.
(14) HELD: The claims failed on all grounds.
(15) On ground (1) the court found that challenges to decisions of the Local Health Boards taken with regard to the consultation and closing of emergency services were academic, as those had been superseded by later ministerial decisions. The court also considered the merits of the specific issues as part of the challenge to the Minister’s decisions.
(16) On ground (1)(a), the court concluded that the essential nature of the challenge was that the LHB had acted deceitfully in conducting a consultation knowing that they had a firm, fully-developed predetermined plan. The court found there was no evidence that a 2010 document prepared by one of the LHB’s board members setting out the plan for closure of emergency services was the preferred option, or even that it was considered by the LHB board. The draft document was prepared simply to look at potential models for the future and plan; it was created to provide a starting point for discussion. The document contained some assumptions, but these were not the LHB’s preferred options. The court additionally found that the absence of the word ‘draft’ on the 2010 document did not change its status, as it was formulated at a very early stage for the purpose of starting discussions around the issue. The document did not demonstrate that the LHB approached its consultation with less than an open mind. There was also significant independent evidence that the consultation was conducted lawfully, and the 2010 document’s being leaked at an early stage ensured that consultees were informed of any preference it might have shown. The court found this contention to be unarguable.
(17) On ground (1)(b), the court found that it was fair to defer certain decisions for the implementation phase of service redesign and not finalise these in the proposals out for consultation. The court found that people had an opportunity to make submissions on the deferred issues, and that the LHB took these issues into account when determining which option to pursue. This ground was found to fall some way short of being arguable.
(18) On ground (1)(c), the court found that the consultees had sufficient time and information to participate, and found nothing in this ground. The listening and engagement exercise last about four months, and the consultation lasted four weeks, substantially longer than the timeframes recommended by the Welsh government. The consultation documents set out clearly the level of doctor involvement in the new service, and this was understood by the campaign against closure.
(19) On ground (2), the court found that consultees’ legitimate expectations had not been frustrated. The evidential foundations of the allegation were too shallow, with the claimants relying on statements in discussion documents stating that the implementation board of the service changes would have a chair who was independent of the LHB. The court did not find these statements to be a commitment to this course of action, but merely information about how the plan was to proceed. Additionally, the claimants could not show detrimental reliance on this information, nor that it would be an abuse to resile from any promise made. The ground was found to be unarguable.
(20) The court dealt with grounds (3) and (6) together and found that Equality Act claims were unarguable. The submissions focused on the issue of patient transportation, arguing that the consultation did not address the adverse impact on people requiring transportation. There was no general challenge to the LHB’s overall approach to its Equality Act obligations, and the court found that it rigorously considered the duty at all stages. The issue of transportation was appreciated, and the LHB was entitled to conclude that it would be possible to develop a model that did not have a disproportionate impact on a protected group. The minister had the same information as the LHB, and made provision in recommendations on the issue of curing disproportionate impact in transportation. These grounds were found to be unarguable.
(21) On ground (4), the court found that challenge failed, as the minister had not misdirected himself as to his obligations with regard to the consultation. The second claimant argued that the CHC referred to him concerns they had in relation to the consultation, but the Minister failed to make a determination on the issue, take those concerns into account or exercise his discretion as to whether to take those concerns into account. The court found that the applicable regulations concerned the adequacy of consultation with the CHC, rather than the consultation with the public. The court further found that the Minister has a duty to make a decision on the outcome of a consultation, not on the process, and is not obligated to make a determination on a referral by the CHC. Other actions on the CHC’s referrals would be at the Minister’s discretion, but do not include a power to make a determination on the process. Cited court cases also did not grant this power.
(22) On ground (5), having already found that the consultation process was lawful, the court found that this ground also failed.
 – Consultation duties
 – Academic questions
 – Evidence of deception