Reconfiguration plan for acute stroke services in Kent gets green light

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Eight separate grounds of challenge were made by the claimants in this judicial review – and it is the first time that the High Court has considered a clinical commissioning group’s duty to reduce health inequalities.

The judicial review challenged the decision taken by ten CCGs to de-commission acute stroke services at various sites in Kent, including at the Queen Elizabeth the Queen Mother Hospital (QEQM) in Thanet.  The CCGs’ proposal was to replace those services with three hyper-acute stroke units (HASUs) at alternative existing hospital sites.

The judicial review was heard by Mrs Justice Farbey at a rolled-up hearing with permission granted for the claimants to proceed on just two of the eight grounds pleaded.  The claimants were ultimately unsuccessful and the claim was dismissed.

Eight grounds of challenge

  1. The defendants misunderstood or failed to discharge the health inequality duty under section 14T of the National Health Service Act 2006 (the 2006 Act). 
  2. A failure to make sufficient inquiry into whether and how stroke prevention measures could mitigate the effects of the decision to remove stroke services from QEQM.
  3. The defendants "failed to make sufficient inquiry into workforce recruitment issues" when deciding that it was not viable to have a HASU at QEQM.
  4. The defendants failed to discharge their duty as to patient choice under section 14V of the 2006 Act.
  5. The defendants' consultation was unlawful. It breached the common law duty of consultation and/or section 14Z2 of the 2006 Act.
  6. The defendants failed to have due regard to the Public Sector Equality Duty under section 149 of the Equality Act 2010.
  7. The defendants failed to conduct sufficient inquiry into the impact of increased travel times to the reconfigured hospital services before making the decision, in breach of its duty to inform itself of essential information.
  8. The decision was unlawful as the defendants failed to consider its effect on patient flows from outside the Kent and Medway area and/or it was Wednesbury unreasonable to support an option which will support NHS services for patients outside the defendants' area in preference to a configuration which will provide services to patients predominantly within the defendants' own areas.

Permission was granted on grounds 1 and 5.  Ground 8 was not advanced during the oral hearing and the other grounds were roundly dismissed as providing no legal basis for judicial review or for being unfounded on the evidence before the court.

Legal analysis: an overview

The judgment runs to 23 pages so, it would be an impossible task to provide commentary on every aspect of Mrs Justice Farbey’s judgment here. Instead, we’ve selected those aspects of this decision that will be of most interest to commissioners involved in service reconfiguration.  

The function of judicial review

The judgment is littered with reminders as to the intended function of judicial review. 

“It is an axiom of the law of judicial review that the court does not concern itself with the merits of executive action.”

“The supervisory nature of the court's jurisdiction is an important constitutional principle. It delineates the respective democratic functions of judges and those who are elected, or delegated by Parliament in legislation, to take decisions on behalf of the public. The principle should not be undermined by invitations to the court to cherry-pick evidence or to interpret the defendants' decision-making documents and the consultation documents like a statute. By going down these routes, the submissions on behalf of the claimants and the second interested party strayed into the merits of the decision.” (paragraph 78-79)

Mrs Justice Farbey was critical of the claimants for advancing multiple grounds without any proper basis in law and for seeking to undermine evidence upon which she concluded it had been entirely reasonable for the defendants to have relied on in making the decision subject to challenge.  She was particularly unimpressed by the claimants’ selective use of parts of the evidence to support their case, and she concluded that when it was considered in context there was no proper public law reason to go behind the evidence or to “step into the arena” to determine any matter of fact.

“Subject to limited exceptions which do not apply here, it is not the function of the court to make findings of fact in judicial review proceedings.” (paragraph 8)

Competing statutory duties

A number of the claimants’ grounds relied on failures by the defendants to comply with the “suite of high level duties” owed by CCGs under the 2006 Act, including the duty to reduce inequalities (section 14T) and the duty to promote patient choice (section 14V).

Mrs Justice Farbey recognised that in order to effectively commission services it was necessary to balance these often competing duties and that doing so involved the exercise of substantial discretion.  

“The 2006 Act therefore imposes a number of different duties relating to a wide range of factors, reflecting the complexity of decision-making in an advanced healthcare system such as the NHS. The defendants' decision was therefore multi-factorial, involving the allocation of limited resources between competing needs. The 2006 Act duties engage socio-economic interests and do not all pull in the same direction.”

In finding that the documents demonstrated the defendants had discharged the duties in full, even though the statute had not always been expressly referred to, Mrs Justice Farbey concluded that it was wrong of the claimants to seek to “ringfence” one particular duty at the expense of any other (para 104) and, that it had been within the broad discretion permitted by Parliament to the defendants’ for them to determine how much weight should be assigned to each of the duties’ objectives. 

In this case, there was nothing irrational about how the objectives had been weighted that would give rise to a basis for challenge in public law.

“In the absence of a public law error, there is no reason for the court to interfere." (paragraph 74-77).

Consultation

In dismissing the claimants’ fifth ground of unlawful consultation, Mrs Justice Farbey concluded that relocating a service from one location to another was not the same as closing a service so the decision to close stroke services at QEQM did not give rise to a common law duty to consult (paragraph 132).   

Furthermore, applying the recent case of Nettleship (see our blog here), Mrs Justice Farbey confirmed that the statutory duty to involve the public at section 14Z2(2)(b) applied only to actual proposals for change and not all arguable options.

“The duty in section 14Z(2)(b) to involve and consult the public in relation to changes in the provision of health services extends only to proposals for change. There is no duty to consult on options which the CCGs deem to be unviable, unrealistic or unsustainable as they do not represent proposals for change.” (paragraph 68).

In short, Mrs Justice Farbey was satisfied that the statutory duty had been complied with and that in any event, the open ended nature of the consultation exercise had enabled respondents to express their views on both proposed options and alternatives (including retaining stroke services at QEQM).  Consultees had made their views on QEQM clear and the defendants had taken that information into account during the decision-making process. 

Comment

This High Court decision draws together a number of key learning points for commissioners involved in service reconfiguration. It also offers some clarity as to what commissioners can expect from the courts in future challenges.

It serves as a reminder to all would-be parties to a judicial review as to its proper purpose and its limits as a mechanism for challenging decisions made by public bodies. 

It emphasises to commissioners involved in service reconfiguration the broad discretion afforded to them when balancing competing high level duties and it confirms the scope of the duty under section 14Z2 to involve the public established by Nettleship.  

Do get in touch if you would like to discuss the implications of this decision or your reconfiguration plans.

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