Do we need to ‘consult’ on option selection? Or just ‘involve’ ?
Challenges to NHS reconfigurations are some of the most common consultation related cases we see in the Courts. The latest in this canon was brought against the Herts Valley CCG and judgment had just been handed down.
The challenge was brought to two decisions to reorganise NHS hospital provision in Hertfordshire, alleging that they had not fulfilled their public consultation duties. The first decision challenged was an options development matter, where the CCG had reduced a list of options from eight to four, without undertaking a full public consultation, but rather with ongoing stakeholder involvement. The second was the final choice of one of those four options, again undertaken with stakeholder involvement, but no formal consultation.
The contention of the NHS was that their reduction of the eight options to four was lawful and did not require full consultation, as there is no duty to consult on options considered unaffordable (see Nettleship from last year). Nor, they said was there any legitimate expectation created that might incur a common law consultation duty. In the second decision they made much the same arguments, bolstered by a refutation of the argument that a public consultation should have been undertaken to give stakeholders the opportunity to challenge calculation of costings.
In the end, Mr Justice Kerr found for the CCG. He stated that the duty to involve is not the same as a duty to consult, and that although the claimant had rightly raised guidance, in support of his case, this did not elevate the duty to involve into a duty to consult. There was no common law duty to consult, and the decision of the CCG and Trust not to share every calculation that led them to arrive at their costings was reasonable, and did not prevent stakeholders from challenging the final costings. There was, he said, no duty to provide unlimited information.
Reconfiguration of services in the area has been a long running process, with little progress made, and this is not the first time it has appeared before the courts. The Institute’s view is that the case could be very important, and we’re taking our time to consider its implications before commenting further. Expect more from us on it next week.