This week the High Court has been considering the lawfulness of a consultation process undertaken by a public body. What differentiates the Royal Brompton & Harefield NHS Foundation Trust v Joint Committee of Primary Care Trusts [2011] EWHC 2986 (Admin) case is that this was the first ever judicial review challenge brought by one NHS organisation (the Royal Brompton & Harefield NHS Trust (RBHT)) against another (the Joint Committee of Primary Care Trusts (JCPCT)). The High Court’s decision, quashing the consultation that was undertaken by JCPCT on the basis it was unlawful, reiterates again the importance for public bodies of ensuring that they get the consultation process right.
The background to the challenge was JCPCT’s review, and proposed reconfiguration, of paediatric congenital cardiac services in England and its conclusions, following a consultation process on the future of children’s heart surgery, that the Great Ormond Street hospital (GOSH) and Evelina Children’s Hospital (ECH) should be the two children’s heart surgery centres in London. On the basis of the decisions to exclude the option for three centre heart surgeries for children in London and to exclude RBHT from the preferred two centre London option, RBHT issued a challenge claiming the consultation process had been legally flawed.
The critical issues for RBHT in its High Court challenge (which proved unsuccessful) were whether:
- The decision to have two rather than three London centres providing paediatric heart surgery services in London was pre-determined, having been taken as far back as 2010, prior to the consultation exercise which took place in March 2011. The High Court did not accept this. JCPCT was entitled to identify and to consult upon its preferred options, which did not include a three-centre option in London; such pre-disposition did not amount to pre-determination.
- The process by which JCPCT had arrived at the preferred option, which firstly excluded three London centres and secondly excluded the Royal Brompton Hospital as one of the London centres was irrational. RBHT alleged that the response form did not expressly ask the question whether a three-centre option in London was to be preferred.
- The consultation was fundamentally flawed and had mislead the public.
- The consultation process was tainted by bias or an appearance of bias given that two members of the Steering Group, which had initially steered the development of the reconfiguration proposal, were consultant paediatric surgeons at GOSH and ECH. Although the JCPCT had taken account of recommendations from the Steering Group, it was entitled to do so and the Steering Group was not the decision-maker. Therefore, the High Court rejected the contention that the consultation process was vitiated by bias or an appearance of bias.
Despite the fact that RBHT failed on these issues, the High Court concluded that the consultation process had been unfair to RBHT because of the way that its capacity for research and innovation had been assessed. Two separate analyses of each heart surgery centre were undertaken as part of the consultation exercise; the first included self-assessment exercises and visits to all centres by an independent panel. The second “configuration evaluation” was carried out some months later by independent management consultants and was used to identify suitable configurations of surgical centre around the country. These configurations became the four options in the public consultation for scoring the various site options.
Although the assessment stage did not ask centres for, or include an evaluation of, paediatric cardiac research output and quality, and this information therefore was never supplied, the RBHT subsequently became aware that a score which gave a low rating to its paediatric research programme had been used during the second configuration evaluation. That score had been determined using information supplied for the first unrelated assessment despite the fact that it had been made clear that these would be separate exercises. No specific information on the hospital’s paediatric cardiac research and innovation programme had ever been requested and without the benefit of that information a low score was given to the RBHT.
Although the JCPCT argued before the High Court that, even if the RBHT had been informed that its capacity for research and innovation was being assessed by reference to the self-assessment form and been invited to make further representations, it would have made no difference to the panel assessing the criteria, the High Court was satisfied that the consultation process was so unfair to RBHT as to distort the consultation exercise. Its view was that the assessment of RBHT’s quality of service would have been regarded as of central importance by a consultee considering the options for reconfiguring the paediatric heart surgery services and it was inevitable that the low score given to the RBHT on “quality” in the weighted scoring must inevitably have adversely affected the responses to the consultation document in a manner that was seriously adverse to the RBHT. The JCPCT’s failure to meet the RBHT’s legitimate expectation that its capacity for research and innovation would be assessed fairly rendered the consultation process unfair and was of “such a magnitude as to lead to the conclusion that the process went radically wrong” and distorted the consultation exercise. For this reason the High Court held the consultation process had to be quashed on the basis that it was unlawful.
What the decision demonstrates is the importance of getting the consultation process right. No cash-strapped public authority wants to have an expensive and time-consuming consultation process held unlawful by the High Court. Assuming the reconfiguration of paediatric congenital cardiac services goes ahead, the JCPCT will have to carry out a wider consultation process. It is important to note that just because the RBHT has successfully challenged the consultation process, it does not mean that the actual decision made will ultimately be reversed. As with the local authorities that forced the Education Secretary to reconsider their BSF cases [link to BSF update], it is still possible that the decision, when taken again lawfully will reach the same conclusion.
For all public bodies, and presumably other NHS organisations that may be looking at a restructuring of services, the following materials may be helpful in understanding their obligations in relation to consultation: