We look at the recent judicial review case of Glatter v NHS Herts Valleys Clinical Commissioning Group  EWHC 12 (Admin) where it was argued that decisions made by the local Clinical Commissioning Group ("CCG") were unlawful because of a lack of public consultation.
The case, brought by the New Hospital Campaign Group (“NHCG”), involved challenging two decisions made by the NHS Hert Valleys CCG in May and June 2019, in relation to the re-organisation of hospital provision in Hertfordshire. The NHCG favoured the building of a new hospital on a clean site and challenged the decisions which resulted in the building of a new hospital being ruled out on the basis of expense, and to spend money on improvements to services at three existing hospitals, Watford General Hospital, St Albans City Hospital, and Hemel Hempstead Hospital. Both decisions were taken without public consultation.
Duty to consult?
In most cases NHS Trusts and CCGs will consult with the public and patients, seeking their opinion when such healthcare changes are proposed, avoiding upsetting local communities and the trouble that lack of consultation inevitably brings. However, section 14z2 of the NHS Act 2006 sets out “the clinical commissioning group must make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways)”.
While this is not technically a ‘loophole’ by which Trusts can avoid consultation altogether, it does mean that there are certain circumstances in which a decision not to consult will be lawful.
This was the basis of the argument put forward by the CCG. The CCG and the Trust argued that they were under no statutory or common law duty to consult publicly and that their obligation, fully performed, was to “involve” service users in “development and consideration of proposals …. for change” under the NHS Act 2006 and that they were not required to consult on the proposals for change, especially those they rationally considered unaffordable. It was further submitted that even if it was found that a public consultation should have been undertaken, the court should not grant relief because the outcome would have been substantially the same and that “granting relief now would serve no useful purpose and would be contrary to good administration.”
Mr Justice Kerr agreed with the CCG and did not accept that there was any legal flaw in the decisions in question.
He agreed that there was a duty to ensure involvement of the public in the decision-making process but this did not equate to an obligation to consult. The decision-making process had been undertaken by NHS managers with public and patient involvement through public meetings and a stakeholder evaluation panel which included Healthwatch, patient representatives, local authorities, voluntary organisations, clinicians and managers. Justice Kerr stated:
The statutory provisions themselves say that consultation is but one way of performing the duty. There are others, including providing information.
It would be inconsistent with the wording of the statutory duty for me to decide that the only way the CCG and the Trust could perform it is by full public consultation. If that conclusion could ever be properly reached, there would have to be no rational alternative, an unlikely proposition I roundly reject.
He also noted that the history of the re-organisation did not establish “anything close to a common law obligation” to engage in a public consultation exercise, over and above the statutory duty of public involvement.
He also considered the situation had he decided that public consultation should have occurred and noted that even in that circumstance it was “highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred” and would have therefore found himself obligated not to grant relief.
This case has provided clarification that where major service changes are proposed, a full formal consultation may not be mandatory. In cases where significant public involvement has been undertaken, this is likely to be sufficient to discharge CCGs’ and Trusts’ statutory duties pursuant to this provision of the legislation.
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