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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

03 MAY 2013

R (on the application of Save Our Surgery Ltd) v Joint Committee of Primary Care Trusts [2013] EWHC 439 (Admin); (2013) PLLR 048

Healthcare - Surgery - Consultation - Scores

The sub-scores in relation to quality were a relevant consideration in the decision of what list of specialist paediatric cardiac surgery centres should remain open. The failure to disclose these scores to Leeds General Infirmary meant that meaningful responses could not be given.

7 March 2013

Administrative Court

Davies J

(1)        The Claimant sought an order quashing the Defendant's decision to exclude Leeds General Infirmary from a list of seven specialist centres for the future performance of paediatric cardiac surgery.

(2)        The Claimant did not challenge the merits of the decision, but alleged that the consultation process preceding the decision was flawed. It was alleged that the consultation was flawed due to (a) procedural unfairness; and (b) a failure to take material considerations into account. The procedural unfairness was said to be a failure to disclose sub-scores relating to quality between the centres. Without this, the consultees were unable to make intelligent and informed responses. The issue as to material considerations related to a failure to take into account the ‘material differences' in ‘quality' between the centres that were being considered.

(3)        The Claimant was a shell company that had been created for the sole purpose of pursuing this case. The Defendant challenged the standing of the Claimant to act in these proceedings.

(4)        The Court summarised the Claimant's position being as follows:

(a)        without the scores, the consultees could not properly respond to everything they had to regarding the total scores;

(b)        the scores were used comparatively, which was a further reason for the scores to be disclosed;

(c)        greater transparency in consultation would have improved the quality of the decision making;

(d)        Leeds General Infirmary had requested the scores, and had considered them to be relevant. It was alleged that these scores were deemed relevant after consultation, and thus it made no sense to have withheld them prior to the decision making.

(5)        HELD: The Court was satisfied that the Claimant had sufficient interest, as it represented many individuals who had been or could be affected by the closure of the Leeds Unit.

(6)        It was recognised that there had been a comprehensive consultation to which thought and care had been given. However, it was not inevitable that the same outcome would have been reached were the requested scores disclosed.

(7)        The request of Leeds General Infirmary for the sub-scores was found not to be unreasonable. Had the sub-scores been provided, the Claimant would have been better placed to direct its responses to specific issues that became central to the appraisal process.

(8)        The Court was thus satisfied that fairness did require disclosure of the sub-scores in order to allow the Claimant to provide a focussed and meaningful response. The Defendant was aware of the importance of the ‘Quality' criteria, and nonetheless chose not to disclose the sub-scores.

(9)        The Court also found for the Claimant in relation to its second ground: the sub-scores were a material consideration that the Defendant ought to have taken into account. This was particularly because ‘Quality' was increasingly significant as the process developed.

Claim succeeded

Key paragraphs

[75] - Not inevitable same outcome.

[93] - Disclosure would not alter the decision.

[102] - Standing.

[103] - Conclusion.

[113] - Not unreasonable request.

[117] - Fairness.

[120] - Ground Two.

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