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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

10 FEB 2016

Keep Wythenshawe Special Ltd v University Hospital of South Manchester NHS Foundation Trust [2016] EWHC 17 (Admin)

Joseph Tomlinson

University of Manchster

Keep Wythenshawe Special Ltd v University Hospital of South Manchester NHS Foundation Trust [2016] EWHC 17 (Admin)

Healthcare-Consultation-Extent of duty to consult

After a public consultation, the Defendant  designated four hospitals as specialist hospitals. It was argued by the Claimants that the Defendants had discriminated unlawfully between the options  solely on the basis of the travel and access criteria, and had wrongly included  populations from outside the Greater Manchester area. The Claimant also criticised the failure to give additional weight to quality and safety and the  decision that other specialised, co-dependent services would not be adversely  affected by the proposals. The Defendants were held to have taken an approach to  consultation that was reasonably open to them.

7 January 2016

Administrative Court

Dove J

1. The Defendants provided specialist care for patients with life-threatening conditions and they were to be combined into four specialist hospitals, pursuant to the aim of improving consistency in the quality of care. Specialist hospitals would perform high-risk and emergency surgery. General hospitals would provide elective surgery.

2. The new proposals set out two criteria for assessing the effectiveness of the specialist hospitals. Two of those criteria were "quality and safety" and "travel and access." After a public consultation process, the Defendant identified four hospitals as specialist hospitals.

3. The Claimant company represented a group of hospital consultants. The Claimant sought judicial review of the decision. Article continues below...
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ISSUES:

4. It was argued by the Claimant that the Defendants had discriminated unlawfully between the potential hospitals solely on the basis of the travel and access criteria, and had wrongly included populations from outside the Greater Manchester area in its decision-making process.


 DETERMINATION:

5. The application was refused.

6. s.142(2) National Health Service Act 2006 conferred on the Defendants an obligation include patients and their carers the decision-making processes concerning their care and treatment.

7. The Defendant possessed a broad discretion as to the form of the consultation. Nonetheless, for a lawful consultation it is required that:
  • (a) the consultation should be undertaken at a time when the proposals were still at a formative stage;
  • (b) sufficient reasons and explanations should be provided about the decision on which consultation was required to enable the consultees to provide an informed response;
  • (c) adequate time should be allowed for such a response; and
  • (d) the responses should be properly taken into account in reaching the decision.
8. In the context of the decision, it was not necessary to re-consult in relation to the change to the catchment and revised travel and access analysis. Though important, the consultation did not determinate the outcome and the alteration of the original catchment area was surprising.

9. There was no proof that Defendant had reached its decision solely on the basis of the travel and access criterion. Nor did the evidence show that the Defendants had reached an irrational decision.

10. There was no legal requirement for consultees to be informed about every potential contingency which might arise, provided that they were not misled by a failure to include such information.

KEY PARAGRAPHS: [63-66]; [69-73]; [77]; [87-90]; [103]; [107]; [116]; [127-137]; [142-143]; [147].
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