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Health Inequalities: Court rejects positive discrimination challenge

The latest legal challenge to NHS service changes in England has resulted in a victory for local Clinical Commissioning Groups (CCGs) in Kent. In the case of R (Keppel) v Ten CCGs in Kent [2020] EWHC 372, a local campaigning group challenged plans to centralise stroke services at three centres with the consequence that existing services would close at the Queen Elizabeth Hospital in Thanet, at Margate.

Thanet is the most deprived part of Kent. It is also one of the 20% most deprived areas in England. Poor health is frequently the result. Stroke prevalence nationally averages at 2.0%. In Thanet, it is 2.7%  The claimants, therefore, argued that removing the facility from its local hospital was bound to exacerbate the situation and, was in breach of the NHS’ statutory duties.

Specifically, Section 14T of the 2006 National Health Service Act (as amended) requires CCGs to have regard to the need to

(a) reduce inequalities between patients with respect to their access….

(b) reduce inequalities between patients with respect to the outcomes….

Whilst the NHS argued that the new arrangements would improve the outcomes of all stroke patients in Kent, the claimants’ case was that there should have been a degree of positive discrimination – taking action specifically to favour those in the socially-deprived area of Thanet. In this case, it would have meant locating one of the three selected stroke centres at the Queen Elizabeth Hospital.

The Court rejected this argument. It pointed out that legislation imposed a whole set of ‘high-level’ duties upon CCGs. Reducing health inequalities was only one of them. Among the others were duties to secure improvement in service quality and in outcomes. Mr Justice Farbey concluded that the NHS had taken a ‘multi-factorial’ decision to balance these various, competing requirements. In this, he said, it had substantial discretion, and what the claimants had sought to do was ‘to ringfence one particular aspect’ of that multi-factorial assessment. Accordingly the claim failed.

On the facts of this case, there was evidence that health inequalities should reduce if the stroke plans go ahead, but we are less sure that this will apply in all cases. The 2015 Guidance document by NHS England on health inequalities talks of ‘a move towards greater investment in health and health care where the level of deprivation is higher.’ It seems to give the green light to positive discrimination under some circumstances.

What may have tipped the balance, in this case, is the undeniably thorough process that preceded the consultation. The NHS had engaged the public and key stakeholders extensively and insofar as the legal requirement is to ensure that their views are properly heard and considered, the consultation and the subsequent decision was lawful. Local people felt a sense of injustice – that the case for retaining stroke services had seemingly gone by default, for it was never an option at the consultation; it had been removed in the pre-consultation phase.

But in an echo of the celebrated Royal Brompton case of 2012, the consultor had wisely left open an opportunity to think beyond the published options. It expressly asked for views on the potential advantages and disadvantages of the proposed changes. It even sought ideas on the criteria that were used to make the decision. In the ensuing consultation, large numbers did so, expressing their opinion that Margate should retain the current service.

In the words of the Judge:

It is therefore plain that those who wanted to respond to the consultation were able to do so and to give their views about the Queen Elizabeth Hospital…”

The Kent case follows quickly on the (delayed) publication of the Court of Appeal’s judgment on a proposed move of services from the South Tyneside hospital – the Nettleship case. In that case, the Court emphasised that the NHS was only obliged to consult on options which represented genuine proposals for change. In other words, it is not required to consult on status quo options which it believed to be unviable, unrealistic or unsustainable. What both cases have in common is demonstrable efforts to engage with local people and little evidence that their arguments were not heard.

If there is a lesson, it is that NHS bodies that invest seriously in best practice consultation and engagement – onerous though they may be – place themselves in a much better position to defend the inevitable legal challenges to controversial decisions.


About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

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