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At a time when hospital closures and the reallocation of services appear to be increasing, consultation and procedural fairness have yet again shown themselves to be the most effective legal means available to campaigners. However, experience and judicial comment suggest that they may be better characterised as roadblocks than weapons.
Over ten years ago, a spate of unexpected deaths of children awaiting or having recently undergone heart surgery at Bristol Royal Infirmary led to an England and Wales-wide investigation into the provision of paediatric healthcare in our hospitals. The ensuing public inquiry ultimately led to a long and complex review of the provision of these services, with multiple expert groups recommending a reorganisation of paediatric cardiac surgery services. The general view was that by grouping services in fewer, larger centres, expertise could be concentrated, avoiding the kind of fragmentation and lack of coordination experienced at Bristol Royal Infirmary. In order to put this reorganisation in place, a second, perhaps more complex process was put in place; this involved a Steering Group, a Standards Working Group and an Independent Assessment Panel. A final, key body was the Joint Committee of Primary Care Trusts (JCPCT), which had responsibility for consultation and for taking decisions following that consultation. Section 242 of the National Health Service Act 2006 requires Primary Care Trusts to consult on the ‘development and consideration' of proposed changes to services. The key outcome of this process was to be which centres should continue to provide these services, and which should be closed. Relocation of services would, in some instances, require patients and their families to travel hundreds of miles to other regions for treatment, and was hotly contested. In July 2012, the final decision was taken to remove children's heart surgery from Leeds General Infirmary, Glenfield Hospital in Leicester and the Royal Brompton in London.
In early March the process was halted as a result of a High Court decision. Save our Surgeries, a shell company created purely to bring this litigation, challenged the fairness of the consultation process on two grounds: firstly, that consultees had not had access to information which was central to the decision-making process and thus which consultees needed access to in order to make a full argument. Secondly, Save our Surgeries argued that the JCPCT had failed to take into account material considerations, in that it had relied on certain assessments placed before it by the Independent Assessment Panel (which had evaluated the services currently provided and evaluated their ability to meet proposed standards now and in the future) and its presentation of such assessments without inquiring into them, and had relied on allegedly mistaken and erroneous advice and assurances from the chair of that Panel.
As well as examining the consultation process in great depth, Mrs. Justice Nicola Davies reviewed the rich body of case law which has built up in connection with consultation requirement, for example, R v North and East Devon Health Authority, ex p Coughlan and R v Secretary of State for the Home Department ex p Doody. It is notable that a significant number of the authorities, such as Coughlan, relate to the provision of healthcare. This requires that consultees have sufficient information available to them to allow intelligent consideration and intelligent response to the proposals put forward. As part of the overall process, ‘sub-scores' had been given to the current facilities, in relation to certain elements of the service they provided. The claimants argued that access to these sub-scores was important, particularly as they had been used comparatively. The judge found that the sub-scores were ‘one of the most valuable and thus significant tools in the assessment of ‘Quality' of the respective centres,' and not simply underlying workings, as contended by the defendant. That the JCPCT had chosen not to consider the detail behind the sub-scores was not sufficient reason not to disclose it to other interested parties. Relevant matters in deciding whether the duty of fairness required disclosure included: the significance of the sub-scores, which were ultimately determinative of the difference in quality scores between Leeds and Newcastle; the importance placed on quality by consultees; and the identification of important and material differences in quality between the centres by the Independent Assessment Panel. Nicola Davies J also noted that ‘the sub-scores provided the clearest indication of the Panel's judgment upon separate sub-criteria.' In sum, fairness did require the disclosure of the sub-scores, so that consultees, and in particular Leeds General Infirmary, one of the centres threatened with closure, could make a ‘properly focussed and meaningful response.' However, there was no good evidence as to whether the JCPCT had used to the scores comparatively.
Save our Surgeries argued that the JCPCT had not properly interrogated the information given to it by the Independent Assessment Panel (namely the sub-scores) and thus failed to take into account all material considerations. Further, the claimant contended that the JCPCT had been wrong to rely on allegedly erroneous advice from the Panel Chair. Nicola Davies J found that, the issue of quality having been raised by a JCPCT advisor and becoming increasingly important through consultation, the JCPCT was under a duty to properly scrutinise and assess all relevant evidence, including the sub-scores. It was not enough to ‘leave this to the experts'; to do so neglected the importance of the sub-scores.
It is also notable that in April of last year, the Court of Appeal found in favour of the JCPCT in a challenge to the same consultation brought against the decision to close similar facilities at the Royal Brompton Hospital in London. In a novel move, the case was brought by the hospital itself - in effect, one part of the NHS taking legal action against another. Of particular note is consideration by the Court of Appeal of the point at which a challenge can be made to a consultation process, as opposed to a final decision. The Court of Appeal agreed with the arguments put forward by the JCPCT: that consultations are intended to be self-correcting and to help those responsible arrive at the correct decisions. Lady Justice Arden, giving the judgment of the Court, noted the danger of the courts ‘stepping in too quickly and impeding the natural evolution of the consultation process through the grant of public law remedies and perhaps being led into areas for the professional judgment of the decision-maker. It should, in general, only do so if there is an irretrievable flaw in the consultation process.' That said, the court did not rule out any chance of success for future claims against consultation processes.
At the time, Royal Brompton were criticised by other hospitals likely to be affected by the process, as the case delayed the final decision being made. The JCPCT has raised concerns that the Save our Surgeries case may have a similar delaying effect, as it is as yet unclear whether the High Court decision will render the final decision unlawful and thus require the entire process to be rerun.
The questions in this earlier appeal differed from those before the High Court in the Save our Surgeries case. Royal Brompton challenged the decision-making process on the basis that the selection of consultants from facilities which were being reviewed to sit on the panel gave rise to bias. The Court of Appeal noted that the question was whether an observer who was both aware of the composition of the panel and the reason for its existence would perceive a real risk of bias. This was found not to be the case. The second key argument made by Royal Brompton was that the consultation process had given rise to a legitimate expectation that information supplied by the hospitals as part of a self-assessment exercise would form part of the consultation process. This argument too failed, the Court of Appeal finding that although there could have been such an expectation, the position could still be amended following consultation, as Royal Brompton could provide the JCPCT with the information a second time.
On a practical level, although the campaigners behind Save our Surgeries were quick to claim victory, and indeed pointed out what the High Court felt to be a significant flaw in the consultation process, their victory could yet prove to be pyrrhic. The court has not confirmed whether it will quash the final decision to close the facilities at Leeds General Infirmary, and if the decision serves only to require a replay of the entire process, hospital users may not feel that they have made any great gains. In terms of legal statement, however, these cases provide useful material on the somewhat vague area of fairness in public authority decision-making, particularly with regard to consultation. With significant changes in the pipeline as far-reaching NHS reforms are put in place, the Save our Surgeries and Royal Brompton cases should be essential reading for practitioners with an interest in this area.
 R (on the application of Save our Surgeries) v Joint Committee of Primary Care Trusts  EWHC 439 (Admin).
  EWCA Civ 1871.
  1 AC 53.
 See also R (Eisai) v National Institute for Health and Clinical Excellence  EWCA Civ 438.
  EWHC 439 (Admin) at para 109.
 At para 115.
 At para 117.
  EWCA Civ 472, at para 93.
 At para 130.
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