High Court puts beyond doubt that there is no statutory duty requiring NHS bodies to consult publicly

The decision in the case of R (oao Glatter) v NHS Herts Valley Clinical Commissioning Group and West Hertfordshire Hospitals NHS Trust was handed down on 6 January 2021. The ruling will be welcomed by those making decisions on NHS service reconfiguration.

Facts in brief

The health bodies had under consideration plans for hospital provision in Hertfordshire. With a budget cap of £350 million imposed on them by regulators, the health bodies made decisions that ruled out the option of a new hospital on a clean site on costs grounds, estimated to cost in the region of £700 - £750 million.

The application

The claimant, an advocate for the building of a new hospital on a clean site, challenged the two material decisions made by the health bodies. The claimant’s challenge was brought on grounds that the decisions were unlawful because they should, by law, have been preceded by public consultation by virtue of the statutory duty to involve the public at section 14Z2 NHS Act 2006 in respect of CCGs (and at section 242 for NHS trusts) and to comply with the requirements of common law fairness. The claimant argued that, had lawful consultation occurred, it would have led to scrutiny and ultimately revision of the costings for a new hospital so that it would have become a viable option.

The ruling

Dismissing the application, Mr Justice Kerr ruled that consultation was not required and that the public involvement undertaken was adequate to discharge the statutory duty.  

In his judgment, Mr Justice Kerr affirms what a substantial body of case law has now put beyond doubt: that the duty at sections 14Z2 and 242 NHS Act 2006 is “...to ensure public involvement in the decision making process and that is not the same thing as an obligation to consult. The statutory provisions themselves say that consultation is but one way of performing the duty. There are others, including providing information” (para 70).

Mr Justice Kerr dismissed the assertion made by the claimant that the statutory guidance functioned to make consultation a requirement where the matter under consideration concerned service reconfiguration. Explaining that the guidance operated only to, “replicate rather than enlarge the statutory duty of public involvement”, Mr Justice Kerr concluded that:

"It would be inconsistent with the wording of the statutory duty for me to decide that the only way the CCG and the Trust could perform it is by full public consultation. If that conclusion could ever be properly reached, there would have to be no rational alternative, an unlikely proposition I roundly reject" (paras 72-73).

The claimant also argued that failing to disclose full costings data violated the requirement for fair public involvement because without it there could be no informed consideration of the decision to withdraw the option of a new hospital on the basis of costs. In considering whether the information shared with the public was adequate, Mr Justice Kerr ruled that it was, because sufficient costings data had been provided to enable an informed response; there is no requirement to share comprehensive costings data. “The obligation is not one to consult fully. Even in a case where there is a statutory or common law duty to consult fully, a consultation document usually need not contain every detail of the calculations and documents behind the calculations used to produce cost estimates” (para 81). He also stated that “It is therefore not enough for the claimant to show...that less than full and comprehensive information was provided...The approach of the CCG and the Trust was (subject always to obligations under the freedom of information legislation) to control the flow of information and to engage interested parties in the discussion through public meetings and the stakeholder evaluation group, without acceding to the demands of the claimant and others for unlimited access to information”.

Decision to refuse relief

Despite having dismissed the claim, Mr Justice Kerr went on to consider whether or not he would have granted relief had the claim succeeded (para 87 onwards). 

He concluded that he would not have done so, because it was highly likely that if the conduct complained of had not occurred, the outcome would not have been significantly different (para 88). 

Key to his decision was the fact that the costings for a new hospital were so far outside the budget that such an option was, at the relevant time, always going to be unfeasible.  Although this part of the judgment is obiter and highly fact sensitive, it is still noteworthy, since it demonstrates a preparedness to refuse relief in a consultation case, something the courts have in the past been reluctant to do.

Key take away

The decision taken as a whole confirms that compliance with the statutory duty is a matter of substance over form and that what is, in fact, required in discharge of the duty is fair and proportionate public involvement on genuine and realistic options. In this case, the extensive involvement exercise was adequate to discharge the duty fully (see para 18 for details). This will be welcome news to decision-makers.

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