Keep the Horton General v Oxfordshire Clinical Commissioning Group and ors [2019] EWCA Civ 646

A useful reminder of the requirements of conducting a fair consultation and importance of filing evidence in a timely fashion.

A useful reminder of the requirements of conducting a fair consultation and importance of filing evidence in a timely fashion.

This was an appeal by Keep the Horton General ("KHG"), a campaign group, against a High Court decision by Mostyn J who had dismissed its judicial review claim. Originally, four local authorities had challenged the lawfulness of a public consultation by Oxfordshire Clinical Commissioning Group (the "CCG") on proposals for changes to hospital and healthcare services in the Oxfordshire area. KHG were an interested party to that claim and sought to appeal the High Court decision dismissing the claim.

The original consultation had been split into two phases. The first considered changes to home care and acute services as well as a range of services at Horton General Hospital ("HGH"). The second phase related to A&E departments in Oxfordshire, children’s services and community hospitals.

 

Section 14Z2 of the National Health Act 2006 sets requirements for consultations by CCGs on healthcare services. CCGs are have to follow guidance issued by NHS England when making decisions and implementing changes, including the "bed closure test". (From 1 April 2017, local NHS organisations have to show that significant hospital bed closures subject to the current formal public consultation tests can meet one of three new conditions before NHS England will approve them to go ahead.)

The four grounds of appeal centred on the CCG's proposals relating to bed closures:

1. The judge failed to consider properly the fairness of consulting on bed closure proposals in phase 1 when the CCG was not consulting on community services until phase 2. The KHG argued that consultees could not sensibly consider the proposals about bed closures when they did not know what alternative provision was proposed.
2. That the flaws in the consultation found by the High Court were sufficiently serious to render the consultation unlawful.
3. The consultation materials only addressed the benefits of the bed closure proposals without addressing the negatives. The KHG argued that in absence of this information, the CCG appeared to have reached its own conclusion.
4. The judge improperly admitted a new witness statement from the CCG during the hearing, after the parties had concluded their arguments.

 

The Court of Appeal judgement focussed on the requirement of fairness in consultations, referring particularly to the requirements for a fair consultation clearly set out in R (Moseley) v Haringey LBC [2014] 1 WLR 3947. The Court of Appeal emphasised the need for pragmatism in applying these principles, noting that:

"Fairness" underpins all; to be lawful consultation must be fair, but fairness does not require perfection. A challenge will not necessarily succeed simply by pointing out a way in which the consultation could have been better, unless the failure to proceed in that way has led to real unfairness.

In dismissing the appeal, the Court found that:

1. The issue of bed closure was largely a question of how the measures, already piloted and in place, were coping with the change caused by the temporary closures and whether it was acceptable to proceed with permanent closure. This had been raised by a number of respondents to the consultation and considered by the CCG, and as a result it had implemented a staggered approach to closure. There was no unfairness in addressing this issue in phase 1 and before the phase 2 proposals had been formulated.  
2. That it was for NHS England to be satisfied about the requirements of the "bed test" before they allowed proposals to go ahead. However it was not for the CCG to invite the public to comment on whether or not they had been met and the consultation was not formally flawed in this respect.
3. The consultations materials were adequate for the public to respond effectively, as the potential "cons" of the proposal were obvious.
4. Although the manner in which the late witness statement was produced was "highly unsatisfactory", no application for adjournment was made at the time, preventing this being a successful ground of appeal.

The CCG also sought to produce an "updating" witness statement on the morning of the Appeal hearing without making a formal application, prompting the Court to remind litigants that applications to adduce fresh evidence on appeal should be made by way of formal application with notice to the other side.

Reductions in the provision of healthcare services are usually likely to be contentious and lead careful scrutiny of the CCG's decision-making. Healthcare commissioners should remember that preparing for consultation and decision-making is key to managing the risk of challenge and ensuring that a consultation is lawful. It is important to keep clear records of consultation documents and responses as the detail may become key in responding to any challenge.  

If you are seeking to challenge the decision made by a body which the Court may consider "expert", ensure that you are prepared to obtain expert evidence on the decision, or you may find it difficult to persuade a court that the decision was irrational.