Good news for commissioners - court rules that a CCG’s consultation was “extensive and fair”

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A High Court judge has refused an application for permission to bring a judicial review, brought by a claimant challenging a CCG’s decision to cut the numbers of community hospital inpatient beds.

A High Court judge has refused an application for permission to bring a judicial review, brought by a claimant challenging a CCG’s decision to cut the numbers of community hospital inpatient beds.

The claimants requested the court’s permission for a full judicial review of a decision by the Northern Eastern and Western Devon CCG to reconfigure inpatient beds. A High Court judge refused to grant permission in December 2015. The claimants renewed their application but this too has been refused. While the detailed reasons for both judges’ refusals to allow the claim to proceed are based very much on the particular facts of the case, there is some learning to be drawn from the comments made by each judge.

Delay

The time limit for bringing a judicial review claim is three months or, to be more specific, “promptly and in any event within three months of the date on which the ground for making the claim first arose”. The claim in this case was lodged with only one day to go before the expiry of that time limit. The first judge placed particular weight on this, stating that the claim “has not been made promptly”. The second judge concentrated more on the merits of the claim – and refused permission based on the lack of merits – but went on to say that even if he had not done so, he would have been concerned about delay and the risk of detriment to good public administration. The emphasis both judges placed on this point is reassuring to commissioners who need to know that they are able to press ahead with contentious service reconfigurations without the interminable threat of legal challenge hanging over them.

Lack of evidence of grounds for judicial review

Just as reassuring is the judges’ refusal to be used as a tool for re-taking the CCG’s decision. The purpose of a judicial review is to review the lawfulness of the decisions of public bodies. Broadly speaking, decisions can be struck down if they are illegal (in the sense that the public body did not have the power in law to take them); irrational (ie, so unreasonable that no reasonable public body, in possession of the relevant information, could have come to the decision that was reached) or procedurally unfair. It is not the court’s role to re-take the decision or substitute their views for those of the decision-makers. Both judges commented on this. The judges could find nothing in the claimant’s argument to indicate that the decision-making process was illegal or irrational as opposed to an invitation to the court to remake the decision.

Typical grounds for challenging a reconfiguration after a public consultation

Most challenges to proposed service redesign allege one or more of those things: 

  • That the consultation was somehow flawed.
  • That the decision had already been taken and the consultation was a sham.
  • That the statistics and/or financial modelling used by the commissioners to analyse options were flawed.
  • That the proposal does not have the support of clinical commissioners and/or that there is not a clear clinical evidence base. This case appears no different, but it seems plain that the work done by the CCG in this case to run a fair and proper consultation protected them from the challenge that arose.

The following points are clear from the rulings. The court regarded the consultation process as “extensive and fair”. The first judge made the point that it “gave sufficient information for opponents to respond to”. Both judges specifically rejected any suggestion of bias or that the decision had been pre-determined. The first specifically noted that the views of clinicians had been taken into account as required and, importantly, stressed that there is no need for unanimous support among clinicians for proposals that are bound to be divide opinion.

In terms of the complaint in this case that the statistics were flawed, the judge took the view that it is always possible to find a different methodology when looking at statistics and that this did not give rise to a ground for judicial review.

What to take away

This case underlines the importance of making sure that controversial proposals are clearly and openly aired in a public consultation process that reaches those who may be affected by the changes. On this issue, please see our top tips for a lawful public consultation. We would particularly re-emphasise the need for caution in the language used in all public-facing and internal documents. In this case, one single statement from a provider organisation was used as the basis for an argument that the decision was pre-determined. Internal documents are likely to have to be disclosed if there is a judicial review challenge; and they are always vulnerable to an Freedom of Information Act challenge. Nothing that is said, even in the shortest of emails, should give the impression that a decision has already been taken or is inevitable.

All in all, this case should provide some reassurance to commissioners that, provided they have done the groundwork, their decisions will be respected by the courts. That said, while judicial reviews cannot always be avoided, prevention is better than cure. Even in this case, the CCG will have faced delays and costs in fighting off the challenge that was brought.

If you are dealing with a potentially difficult reconfiguration, you might be interested in our more comprehensive briefing. Get in touch with Philip Grey to request a copy.

Source: NHS Northern, Eastern and Western Devon Clinical Commissioning Group

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