Specialist services - Applicant hospital trust providing paediatric and congenital cardiac services - Trust challenging consultation process

R (on the application of Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts and another: CA (Civ Div) (Lady Justice Arden, Lord Justice Richards, Sir Stephen Sedley): 19 April 2012

The applicant trust, which was based in London, was the largest specialist heart and lung centre in the UK and among the largest in Europe.

It provided a specialist service for children’s heart and lung disease and comprehensive paediatric critical care services. The NHS national specialised commissioning group was requested to review the provision of paediatric and congenital cardiac services (PCCS). The first respondent committee was established as the formal consulting body with responsibility for the conduct of the consultation on the review and for taking decisions on issues which were the subject of the consultation.

An independent assessment panel (the panel) was tasked with reviewing each of the existing providers of PCCS services and evaluating their compliance with the proposed service standards (the criteria). There were three distinct stages to the review: (i) completion of a self-assessment template by each PCCS provider; (ii) an assessment by the independent panel; and (iii) a configuration options assessment to establish a shortlist of options. On receipt of the self-assessment, the independent panel agreed initial scores for each centre and subsequently undertook a round of visits. Following the visits, the self-assessments and scoring were reviewed and each centre was given a score measuring its current and future compliance against the criteria.

There were two phases to the configuration options assessment: first, the establishment of a shortlist of viable options; and second, the scoring of short-listed options against evaluation criteria to determine which options to put out to formal consultation. In the weighted scoring exercise, the trust scored the lowest on two criteria: quality and deliverability. As to quality, the trust scored lowest on research and innovation as a result of the assessment carried out by the panel. The respondent committee published a public consultation document which set out a number of options for the whole of England.

In that document, the committee expressed the preferred option that there should be only two centres for London and that those two centres should be at Guys and St Thomas’ Hospital and Great Ormond Street Hospital. It explained that the effect was that the relevant paediatric unit at the trust would have to be closed, but that there was little risk to local or national paediatric intensive care provision because there was existing provision for cardiac surgery elsewhere in London. The trust applied for a quashing order. It submitted five grounds on which the consultation process should have been set aside.

It succeeded in respect of one ground only: that the committee had failed to meet its legitimate expectation which had derived from the self-assessment template that the criteria and scoring in the evaluation undertaken by the panel would be separate from the configuration options assessment and that it would have no direct bearing on it. The judge held that there had been a clear and unequivocal representation in the self-assessment template.

In his judgment, the scores reached by the panel had clearly been used in, and had therefore had a direct bearing on, the scoring for the purposes of the configuration options assessment. The way in which the quality scoring had been carried out had rendered the consultation exercise unfair to the trust. Consequently, the consultation exercise had been unlawful and had to be quashed. The committee appealed. It submitted that the self-assessment template had not contained a clear representation that the response would not be used as part of the scoring for the purposes of the configuration options assessment. The appeal would be allowed.

The judge had erred, in the proceedings below, in his conclusion regarding legitimate expectation. On the facts, the consultation process could not be said to have been unfair. The requirements of the self-assessment template had been reasonably clear. There had not been a clear and unequivocal representation made by the self-assessment template about non-use of the information provided for the purposes of assessment of the configuration options.

The response to the self-assessment template, as moderated following the panel’s visit to the centre, had been a component of one of the criteria for the configuration exercise, namely the criterion of quality. Accordingly, the response to the self-assessment template had had a substantial influence on the ultimate result (see [102], [104], [106], [109] of the judgment).

Per curiam: the act challenged was a consultation process, not the final decision of a public body. True consultation is not a matter of simply ‘counting heads’: it is not a matter of how many people object to proposals but how soundly based their objections are. Moreover, the process of reconsideration is a public and transparent one. If a public body fails to consider a significant matter or to reach a reasonable result by doing so, its further decision is liable to be the subject of challenge… Nor should the court overlook the possibility that, following receipt of consultation responses, the decision-maker may conclude that no decision is yet possible… Intervention at the earlier stage may also cause wasteful, harmful or avoidable delay, particularly where consultation is conducted on the scale on which it was conducted in this case.

On the other hand, there will be cases where it is appropriate to grant some form of relief in relation to a consultation process, not least because applications for judicial review must be made promptly.

Nonetheless, the judge may properly conclude that, even though there has been a public law wrong, the matter is best dealt with by refusing relief and allowing the decision-maker to consider the matter following completion of the consultation… The decision-maker has to balance the interests of several different groups, not simply those represented before the court. The decision-maker may be in a better position to do this… Not all objections to the accuracy of a consultation process will lead to a full reconsideration of provisional decisions. It is not enough, therefore, for a party seeking to quash a consultation exercise to point to some facts that are inaccurately presented… In short, it is inherent in the consultation process that it is capable of being self-correcting… the courts should therefore avoid the danger of stepping in too quickly and impeding the natural evolution of the consultation process through the grant of public law remedies and perhaps being led into areas for the professional judgment of the decision-maker. It should, in general, do so only if there is some irretrievable flaw in the consultation process (see [87]-[90], [92], [93] of the judgment). Decision of Owen J [2011] All ER (D) 44 (Nov) reversed.

Alan MacLean QC and David Scannell (instructed by Hempsons) for the trust; Dinah Rose QC and Marina Wheeler (instructed by Capsticks) for the committee.