Nettleship is the latest in a long line of judgments dealing with matters of public engagement in relation to NHS service reconfiguration.
The appellant was appealing a decision by the High Court to refuse a judicial review application challenging the lawfulness of a decision to reconfigure certain hospital services at the Sunderland Royal Hospital and South Tyneside District Hospital taken on 21 February 2018. The appeal was dismissed with the Court of Appeal upholding the judgment of the lower court on all four of the grounds the appellant sought to rely on.
The appellant sought to argue, amongst other things, that the CCGs had breached the statutory duty to involve the public at section 14Z2 NHS Act 2006 (because the consultation needed to have taken place before the “retain services” option was discarded which had been done in committee) and that the consultation exercise undertaken by the CCGs was unlawful because it did not include consultation on a ‘do nothing’ option / did not explain why it had been rejected.
In dismissing the appeal (judgment paras 54-68), the Court ruled that:
- the words of section 14Z2(2)(b), coupled with the statutory guidance, result in a duty upon CCGs to consult only on options which represent genuine proposals for change; but that notwithstanding
- fairness still requires passing references be made to arguable yet discarded options (per Lord Wilson in Moseley) and not those deemed unviable, unrealistic or unsustainable as those do not represent genuine proposals for change
The Court was satisfied that such approach was not inconsistent with the common law principles for lawful consultation established by Ex parte Gunning (1985) and approved by the Supreme Court in Moseley  because the wording of s.14Z2(2)(b) was clearly intended to limit the scope of the duty to viable options.
The Court was satisfied that in the present case it had been reasonable for the CCGs to conclude that doing nothing was not viable and that the CCGs had adequately referenced the discarded ‘do nothing’ option within its published documents. Central to its conclusion in that regard was the fact the CCGs had included in the public consultation document a section titled “Why doing nothing is not an option” together with internet links to a publically available Issues Paper and Pre-Consultation Business Case document setting out the process used by the CCGs to achieve their shortlist of proposed options. The Court also observed that if it was felt that insufficient information relating to the retain services option had been made available then more could have been requested but it had not been.
The judgment also clarified a procedural point regarding when a judgment of the court takes effect, confirming that it is the date on which the judgment is given as opposed to being the date the final order is issued. (paras 70-86).
The judgment is available in full here.
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As we have seen in Nettleship, the reconfiguration of clinical services continues to generate controversy both locally and nationally. Given significant financial and workforce constraints, pressure to reconfigure services is only likely to increase. It is therefore important that the right steps are taken to deliver a lawful reconfiguration scheme.
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