National Health Service: Consultation

The defendant NHS Trust had breached s 242(1B)(b) and (c) of the National Health Service Act 2006 by failing to make arrangements which had secured that service users had been involved: (i) in the development and consideration of the proposals for the designation of the hospital as a ‘Green site’ (namely that there would be no Covid-19 related treatment on the site); and (ii) in the making of the decision itself. The Administrative Court, in allowing the claim in part and in construing the relevant section of the Act, held that, ultimately, the question was whether the arrangements, looked at as a whole, had secured the opportunity for meaningful involvement or participation in the specified matters, and that the relevant duty contemplated service user involvement before the event, and at the formative stage. The court held that, on the facts, it was just and convenient to grant the claimant service user declaratory relief.

In early 2020, in the first, ‘Manage’, phase of the Government’s response to the Covid-19 pandemic, NHS care providers were obliged to give priority to the treatment of Covid-19 patients. In April, at the beginning of the Government’s second, ‘Restore’, phase of its response to the pandemic, NHS England and NHS Improvement  issued a letter to all NHS care providers, which required that NHS Trusts ‘step up’ non Covid-19 urgent services as soon as possible over the following six weeks, and work across local systems and regional teams over the next ten days to make judgements about whether there was further capacity for, at least, some routine non-urgent elective care.

In response to that letter, on 11 June, the defendant Trust (the Trust) decided to designate its hospital (the hospital) a Covid-19 free ‘Green’ site from 22 June, until at least 31 March 2021 (the decision). That meant that there would be no Covid-19 related treatment on the site and that there would be an increase in elective treatment and chemotherapy at the hospital. Further, cancer and other elective surgery would be transferred to the hospital from other hospitals in Lincolnshire. There would also be increased capacity for urgent diagnostics.

To minimise the risk of Covid-19 infection of patients using those services, it was decided that all patients would be required to have a known Covid-19 status on admission. Unplanned admissions and certain other outpatient services would be transferred to other hospitals and locations in the area. It was, therefore, necessary to replace the existing Accident & Emergency (A&E) department with a walk-in Urgent Treatment Centre (UTC) located in a separate part of the site in order to minimise the risk of Covid-19 infection as a result of frequent and unpredictable footfall. The UTC would deal with minor ailments and injuries, but those with more serious injuries or conditions would need to travel to one of the other hospitals in Lincolnshire. In addition to the closure of the A&E department, a variety of outpatient services were no longer to be provided on site, and two wards of general medical beds (i.e. approximately 70 beds) were no longer to be available.

The decision caused significant inconvenience to certain users of the services of the hospital, including the claimant, aged 54, who suffered from spina bifida and hydrocephalus and used a wheelchair. The effect of the decision was that she had to travel 27 miles each way to Boston, rather than 7 miles each way to Grantham for consultant appointments.

The claimant brought a claim, challenging the decision.

(1) Whether, in coming to its decision, the Trust had breached s 242(1B)(b) and (c) of the National Health Service Act 2006 (NHSA 2006, see [91] of the judgment for the provision) by failing to make arrangements which had secured that service users had been involved: (a) in the development and consideration of the proposals for the designation of the hospital as a Green site; and (b) in the making of the decision itself. A question arose as to whether, as the Trust submitted, arrangements for service user involvement after a decision could be relied on to discharge the s 242 duty (ground 1).

Ground 1 would be upheld (see [143] of the judgment).

NHSA 2006 s 242 was one of a number of provisions in that Act which placed obligations on NHS bodies to make arrangements to secure the involvement of service users in decision-making about services. The key requirement under  s 242(1B) was that each relevant body made arrangements to secure the involvement of service users in the matters specified in sub-ss (a)-(c). The section contemplated that there might be standing machinery for service user involvement in the form of established procedures, channels of communication, user groups and committees etc, but the obligation was capable of being discharged by arrangements for service user involvement in relation to a particular planning process, proposal and/or decision. The arrangements might secure involvement directly by service users, or through representatives (see [91]-[99] of the judgment).

On its face, s 242 answered the question whether arrangements for subsequent involvement would do. They clearly would not. There was a requirement to secure involvement in the planning of the provision of services which contemplated involvement before the plans had been finalised. There was a requirement to secure involvement in ‘the development … of proposals for changes’ which, by definition, could only take place while the proposals were under development, rather than in final form. There was a requirement to secure involvement in the ‘ … consideration of proposals for change’ which, by definition, had to entail involvement while an idea was still a proposal, as opposed to having been decided on. Further, there was a requirement to make arrangements to secure involvement in ‘decisions to be made’, as contrasted with decisions which had been made. That view was confirmed by s 242(1C) which clearly referred to proposals which, if implemented, would impact on services, and s 242(1D) which referred to the decision ‘(if made)’. Both subsections, therefore, contemplated service user involvement before the event and at the formative stage (see [100] of the judgment).

In a case where the matter was urgent and a decision was taken on a genuinely short term or provisional basis, the fact that the decision was genuinely open to reversal or modification, and also that arrangements were put in place for further service user involvement, might mean that less before the event involvement was required. That was a function of the fact that s 242 was subject to principles of fairness and proportionality: the greater the impact of a decision, the higher would be the requirement of service user involvement in the decision-making process. That aspect or feature of a case would also be relevant to issues of relief in the event of a judicial review. However, the scope for application of that principle was limited (see [101] of the judgment).

Although sub-ss 242(1B) (a)-(c) overlapped and, therefore, should not be seen as hermetically sealed compartments, they did establish requirements as to what service users were to be involved in. In the context of the present case, it  seemed that the section entitled the court to ask: (i) under s 242(1B)(b), what arrangements the Trust had made to secure the involvement of service users in the development and consideration of the proposal to establish the hospital as a Green site; and (ii) under s 242(1B)(c), what arrangements it had made to secure the involvement of service users in the decision which was to be made by the Board on 11 June 2020. No real evidence of generally applicable arrangements or machinery for securing involvement in the matters specified by s 242(1B)(a)-(c) had been presented or relied on. Rather, the Trust had relied on the specific steps which it had taken in relation to the particular proposal and the decision (see [102], [103] of the judgment).

None of those steps could sensibly be said to be arrangements to secure involvement in the ‘development’ of the Green site proposal which had been under consideration and development by the Trust from 10 May 2020, at the latest, and had been posted in its final form on the Trust’s website at 3pm on 8 June. The only alleged involvement prior to 8 June had been a radio interview on 3 June. However, what, precisely, had been said and who had heard it were unknown, and the Trust accepted that Mr M (its Chief Executive) had not identified the location of the proposed Green site. The evidence also suggested that the proposal had been in substantially its final form at that stage in any event: the outstanding issues had been, primarily, matters of drafting (see [104] of the judgment).

On that basis, there had been a total failure on the part of the Trust to comply with one of the requirements of s 242(1B)((b). The remaining issues were whether the Trust could rely on the pandemic to avoid a finding of breach of the section for that reason alone and/or whether the steps taken from 3 June had complied with the duty to make arrangements to secure involvement in the ‘consideration’ of proposals and the ‘making’ of the decision (see [105] of the judgment).

R (on the application of Moseley) v Haringey London Borough Council [2014] UKSC 56 considered.

(2) The court considered the scope for intervention by the court where, arguably, at least some relevant arrangements had been made.

The terms of the section itself provided a large part of the answer. There was an obligation to make arrangements which secured involvement in the matters specified in s 242(1B) (a)-(c). The arrangements ‘must’ be made, and they had to ‘secure’ that service users ‘are involved’. That formulation was introduced by s 233(2) Local Government and Public Involvement in Health Act 2007 (LGPIHA 2007) and it replaced the ‘must make arrangements with a view to securing’ formulation in what was then NHSA 2006 s 242(2), albeit what had to be secured before the amendment was that the relevant persons were ‘involved in and consulted on’ the specified matters (see [106] of the judgment).

The key concept was ‘involvement’. The sufficiency of any arrangements which were relied on as discharging the obligation under the section should, therefore, be assessed by reference to the question whether they did, in fact, secure involvement for services users in the specified matters. The section could not have been intended to require a relevant body to secure actual involvement by service users on pain of being held to be in breach, and the formulation had to, therefore, contemplate that what was required was the opportunity to be involved of which service users could or could not choose to avail themselves. Self-evidently, that opportunity had to be meaningful (see [107] of the judgment).

As to what constituted meaningful involvement, s 242(1B) (a)-(c) obviously specified the processes in which involvement had to be secured, but they also indicated the essentials of meaningful involvement in decision making about the provision of services. Involvement in planning, in development and consideration of proposals for change, and in decisions to be made about the operation of services, were the essentials of meaningful and fair participation in decision making. The statute contemplated that there would be the opportunity for involvement in planning and the development of proposals when they were at a formative stage and in the making of decisions about the relevant matters. It also contemplated that that  involvement would potentially influence outcomes and that the views of service users were therefore taken into account by decision makers (see [108] of the judgment).

As to the methods by which involvement was secured, the words ‘involved (whether by being consulted or provided with information, or in other ways)’ did not indicate that involvement was necessarily a weaker concept than consultation. The section was aimed at securing meaningful participation in the relevant decision-making processes. That might mean that the service users or their representatives were party to the decision, rather than merely being consulted about it, but it could mean that, at a given stage in the process of involvement it would be sufficient to provide information. However, it would be an unusual case in which it could be said that the provision of information, without more, amounted to securing involvement in decision making: usually it would do so if it facilitated participation in that decision making, but not if service users were merely told what the plan, the proposal or the decision would be and they were to have no further involvement. It was inherent in the fact that the section was concerned with ‘arrangements … which secure involvement’ that part of those arrangements would be the provision of information, so as to facilitate involvement, and that there might be stages in a given decision making process where that was sufficient at that stage. However, ultimately the question was whether the arrangements, looked at as a whole, had secured the opportunity for meaningful involvement or participation in the specified matters (see [109]-[112] of the judgment).

The purposes which the duty to consult aimed to serve applied in the present case. Section 242(1B) contemplated that involvement of service users would improve the quality of decision making. The perspective and concerns of the consumer of the services would lead to better informed decisions and it would increase the likelihood that the human impact and implications of plans, proposals and decisions were taken into account. The present case also illustrated how failure to involve service users in decision making would foster a sense of injustice or, worse still, undermined confidence in the good faith of the decision maker (see [112], [113] of the judgment).

Under the current formulation of the duty, the arrangements had to be made and they had to secure the involvement of service users, rather than merely being made ‘with a view to securing’ involvement. Moreover, consultation was an example of a means by which involvement was achieved, rather than the section being concerned with “involvement in and consultation on” the specified matters. However, the overall point that the provision was concerned with the making of arrangements which would require different steps according to the stage of the process of involvement which had been reached and/or the overall circumstances of the case including the nature and impact of the proposal or decision, held good (see [114]-[118] of the judgment).

The court rejected the proposed interpretation of s 242 which treated the ‘form of involvement’ as a discretionary matter, subject only to a challenge on Wednesbury grounds, but accepted that, once the form had been chosen, the ‘manner’ in which it was deployed was subject to a duty of fairness. That subdivision of the section into two questions, with different standards of review for each, was unwarranted by its terms. It also seemed to ignore the facts that the section was concerned with the making of ‘arrangements’ and that the governing requirement was to secure the ‘involvement’ of service users. The method or form of involvement, whether it be consultation, the provision of information or some other method, had to secure meaningful involvement, rather than the question being whether information had been provided fairly or even consultation had been conducted fairly (see [119] of the judgment).

Applying those principles, subject to the third issue which was considered below, the arrangements which the Trust had made and implemented from 3 to 11 June 2020 had not complied with s 242(1B) by securing meaningful or fair involvement of service users in development or consideration of the proposal for a Green site at the hospital or the making of the decision (see [124] of the judgment).

R (on the application of Fudge) v South West Strategic Health Authority [2007] EWCA Civ 803 considered; R (on the application of Moseley) v Haringey London Borough Council [2014] UKSC 56 considered; R (on the application of Hinsull) v NHS Dorset Clinical Commissioning Group [2018] EWHC 2331 (Admin) considered; Keep The Horton General (acting by Strangwood) v Oxfordshire Clinical Commissioning Group [2019] EWCA Civ 646 considered; R (on the application of Nettleship) v NHS Sunderland Clinical Commissioning Group and another [2020] EWCA Civ 46 considered; Glatter v NHS Herts Valley Clinical Commissioning Group [2021] EWHC 12 (Admin) considered.

(3) The court considered the extent to which the consequences of the Covid-19 pandemic could be relied on to justify any deficiencies in the arrangements which were made by the Trust.

Considerable caution should be exercised in relation to an argument that Trust personnel were, in effect, ‘too busy with other things’ to comply with s 242. Such an argument ran contrary to the purpose and importance of the section. The court would not be minded to accept such an argument in the absence of clear evidence that a Trust would be unable to comply with others of its duties were it to devote resources, or more resources, to compliance with s 242. Even if the question squarely arose as to which statutory duty a Trust should breach, it would not follow that s 242 should be sacrificed given its importance (see [128] of the judgment).

The evidence did not establish that there were insufficient resources to do more to comply with s 242, nor that that had been the reason for the Trust’s limited approach (see [129] of the judgment).

As for urgency, the Trust’s case was weak on the facts. Among other things, it seemed to be wholly inconsistent with the statutory requirement to involve service users in the ‘development’ of proposals to argue that until the proposal was in final, or virtually final, form no involvement could take place. Similarly, the argument that disclosure of a proposal which would have undergone development could have been confusing, disruptive or dangerous for service users was not supported by evidence. It was also inconsistent with the aims and requirements of s 242 which assumed a competent and measured approach on the part of the Trust and a rational reaction from service users (see [131]-[134] of the judgment).

As for the point that the decision was beneficial to the service users as a whole, There was a good deal to be said in favour of it. However, that point had limited force in relation to compliance with s 242. The section did not require arrangements for the involvement of service users only in relation to changes which are adverse to all, or even some, of them. Rather, it reflected a broader, essentially democratic, principle that service users should be involved in decisions about the health services which are available to them. Where a proposal or decision was entirely or almost entirely beneficial, or its adverse features had very limited impact, that might mean that less protracted or detailed arrangements were required. However, in the present case, the decision did have a material adverse impact on a substantial number of service users. The fact that the Trust had recognised that the proposal was likely to be controversial was a reflection of that (see [137] of the judgment).

The fact that a proposal or decision was said to be temporary, of itself, was the important consideration in deciding the adequacy of arrangements for service user involvement. What mattered was what impact the decision would have and for how long. The decision was to take effect for ‘at least’ nine months. That seemed to be a significant period of time, with no guarantee that there would be no extension (see [138] of the judgment).

The court accepted that the fact that a decision could be subject to quarterly review and that the plan could also be to involve service users in the interim might be relevant to the question whether given arrangements were meaningful, proportionate and fair. That was consistent with the requirement that the service user involvement took place before the decision was taken, but also with the point that the degree of involvement required would be affected by the nature and impact of the decision. However, in many cases, once a decision had been taken and implemented the status quo was different for as long as it was in force and the default position in relation to any subsequent involvement was materially different. Moreover, the longer the change remained effective, the greater risk that the status quo ante would be incapable of being restored. That was particularly so in the present case where substantial changes were made which affected the provision of existing services at the hospital, but also at the other hospitals in the area and that, in turn, affected the workforce of the Trust and the use and deployment of premises and equipment (see [139] of the judgment).

It followed that the Trust had breached both NHSA 2006 s 242(1B)(b) and (c) (see [140] of the judgment).

R (on the application of Article 39) v Secretary of State for Education [2020] EWCA Civ 1577 considered.

(4) Whether the decision had been irrational,  disclosed an improper purpose or had been insufficiently reasoned (ground 2).

Ground 2 was rejected. The reasons for the proposal set out in the Board paper, and further explained in the Board meeting of 11 June 2020, had been sufficiently detailed. As to the point about the duration of the decision, that had not been explained in detail, but the reason for the changes being in place for at least nine months, subject to quarterly review, reflected the projected duration of the third, ‘Recover’, stage of the national response to the pandemic and the need to maintain non Covid-19 related services and patient confidence in their ability to make use of them. There was no basis for an inference that the period of time for which the decision would apply and/or any lack of an explanation for that period of time was indicative that the Trust had been in bad faith, or acting for an improper purpose, or that the decision was irrational. The decision itself had been perfectly rational and had been taken in good faith and for proper purposes (see [145] of the judgment).

In the result, applying settled law to the facts, granting declaratory relief in the present case would not be a waste of time or public money. On the contrary, it was just and convenient to grant it (see [149]-[151] of the judgment).

Gathercole v Suffolk County Council [2020] EWCA Civ 1179 considered; Bokrosova v Lambeth London Borough [2015] EWHC 3386 (Admin) considered; Public and Commercial Services Union and others v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) considered; R (on the application of Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860 considered; R (on the application of KE and others) v Bristol City Council [2018] EWHC 2103 (Admin) considered; R (on the application of L (by her litigation friend) and others) and others v Devon County Council [2021] EWCA Civ 358 considered.

Vikram Sachdeva QC, Catherine Dobson and Clara Benn (instructed by Irwin Mitchell LLP) for the claimant.

Fenella Morris QC and Peter Mant (instructed by Capsticks) for Trust.

Carla Dougan-Bacchus - Barrister.