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03 MAY 2013

R (on the application of Copson) v Dorset Healthcare University NHS Foundation Trust [2013] EWHC 732 (Admin); (2013) PLLR 050

Community Care - Consultation - Equality Duties - Mental Health Services

Changes to the mental health services provided in west Dorset were held to be compliant with the Defendant's duty under the Equality Act 2010. Further, the consultation which had taken place had been lawful and within the discretion of the Defendant.  

28 March 2013

Administrative Court

HHJ Keyser

(1)        Rosalind Copson, the Claimant, sought an order quashing the Defendant's decision to implement the ‘Mental Health Urgent Care Services Project' which reconfigured mental health services in west Dorset.

(2)        The Claimant's application was made on two grounds. First, the Defendant failed, before reaching its decision, to carry out adequate consultation with mental health service users. In this regard, it was primarily alleged that there was a failure to provide the users with sufficient information to enable them to properly engage with the proposals. Second, it was alleged that the Defendant failed to comply with its duty under section 149 of the Equality Act 2010 to have due regard to the need to advance equality of opportunity.

(3)        HELD: The Court rejected the Claimant's first ground of challenge. The authorities on the requirements of a lawful consultation did not require consultees to be provided with all information that would be material to the decision-making. The nature and purpose of a consultation is not to turn service users into ‘surrogate decision-makers', but to obtain input from them.

(4)        The entire history of consultation was held to be relevant, including that which had taken place before the original proposals had been altered in April 2012. The on-going process of the consultation did not detract from engagement that had taken place in late 2011 and early 2012, which had been undertaken in performance of the duty upon the Defendant.

(5)        Nothing in the evidence put to the Court demonstrated a lack of engagement or a failure to consult in good faith, nor that there had already been a decision to implement proposals regardless of the responses received. Neither was there anything to suggest that the Defendant had tried to curtail the consultation process or make a decision before it had been completed.

(6)        The Court found that the Defendant had not failed to have regard to the consultation when making its decision. The burden was upon the Claimant to show this, and there was no evidence to support that claim.

(7)        The Defendant had also provided sufficient information to the consultees to allow them to make informed responses regarding the range and delivery of services and the effects of the proposed alterations. As the advanced proposals were to be cost-neutral, there was no need for the Defendant to consult the service users as to financial viability. The Claimant in no way established that any unfairness could be identified from a failure to involve service users.

(8)        The overall manner of the consultation was held to be one that was within the discretion of the Defendant, and the contention that the consultation was unlawful was thus rejected.

(9)        The second ground for challenge was rejected. It was held that there was no burden on the Defendant to prove that it had complied with its duty; the burden was on the Claimant. The Court found it to be completely obvious that the Defendant had had the public sector equality duty in mind.

(10)     The Court accepted that the equality impact assessment undertaken could have been more thorough, but contended that this alone did not alone constitute a breach of the duty under section 149 of the Equality Act. The Claimant's challenge was therefore dismissed.

Claim dismissed

Key paragraphs

[51] (1) - No need provide all information.

[51] (2) - Not surrogate decision-makers.

[51] (3) - History relevant.

[51] (5) - Engaged in consultation.

[51](6) - No curtailment of process.

[51] (7) - Due regard to consultation.

[51] (8) - Sufficient information provided.

[51] (9) - Financial viability.

[51] (10) - Transport deficiency not unlawful.

[51] (13) - Conclusion: Ground One.

[57] (2) - Equality duty considered.

[57] (5) - Equality Impact Assessment.

58 - Conclusion.

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