Last week’s High Court judgment in R (ex parte Buckingham) v NHS Corby Clinical Commissioning Group is a case study on how not to manage change in the NHS.

In brief, the CCG wants to convert a popular walk-in Urgent Care Centre used by 70,000 people per annum into a Same-Day Access hub facility, and undertook a range of pre-consultation activities in 2017. During these, it gave repeated and unequivocal undertakings to consult local people as required by legislation. In January 2018, however, it changed its mind and took a service change decision which was challenged by campaigners in the High Court.

In Court, the CCG argued, inter alia:

• That although it had promised consultation, the devising of a single option for the Same Day Access Hub meant that consultation was unnecessary.

• That it had received (undisclosed) legal advice that it would be lawful not to undertake a consultation.

• That NHS England agreed with this view (In fact, this was untrue. NHS England had actually advised that the CCG’s business case was ‘not sufficiently robust’!)
• There had been a comprehensive engagement programme on the proposal. (Actually, although there had been some involvement on the development of the proposal, there had been ‘no engagement at all’ on the proposal itself).

• The change was not a ‘substantial variation’ for the purposes of discharging its duty to consult the Health Overview & Scrutiny Committee (and which had, on that basis, and a mistaken idea that consultation had already taken place) agreed that engagement had been sufficient.

None of these points were accepted by Judge Jarman, who found for the claimants, largely on the grounds of legitimate expectation. The promises made by the CCG could only be overridden by a more important countervailing public interest such as national security. The CCG tried to argue that the requirement to act ‘effectively, efficiently and economically’ amounted to such an excuse, but the Judge rightly rejected the argument.

Claimants alleged there had been a breach of Section 14Z(2) of the 2006 NHS Act, which requires the public involvement (whether by being consulted or provided with information or in other ways) ‘… in the development and consideration of proposals …. on the manner in which the services are delivered ….’ The CCG based its case on a single Workshop involving fewer than 10 members of the public, and a very limited opportunity to ask a question at the ‘meeting in public’ of the Governing Body called to take the decision. The agenda was only published on the day of the meeting and the Judge concluded that, in consequence, the CCG was in breach of its duty.

Another key issue was the claim that the CCG had failed to observe the ‘due regard’ provisions of the 2010 Equality Act. All public bodies are aware of their obligation to comply with the Public Sector Equality Duty (PSED) and the key Section 149 provision usually relies upon public bodies assessing the impact of their proposals on specific groups with protected characteristics. In this case, an Equalities Impact Assessment had failed to identify any negative impacts because it assumed that extra primary care capacity would be added. It had, however acknowledged that that there might be gaps in the CCG’s knowledge, and expected that the anticipated public consultation would enable engagement with equality groups to remedy this. By cancelling any consultation, this never occurred and neither did the decision-making meeting discuss equality issues.

Among other arguments advanced in this case was a claim that the decision was affected by ‘material errors of fact’. Courts set the bar high for interventions of this kind, and the standard adopted is that such errors must be ‘uncontentious and objectively verifiable’. Corby CCG’s Governing Body was told by officers that there had been a comprehensive programme of engagement on the proposal. In fact, there had not. In the words of the Judge: –

‘Whilst there may be some debate about what amounts to “comprehensive”, in my judgment it is plain that there was no engagement at all on the proposal prior to the Decision. The engagement had helped to shape the proposal but that is different to engaging on the proposal once shaped. I accept that this was an error of fact which is likely to have played a material part in the decision making. (Paragraph 78)

One final footnote. The CCG, not being content with a wholly unconvincing defence to the legitimate claims of campaigners, tried to argue that even though the decision may have been unlawful, that no further action be taken because the claim was ‘out of time’! This was despite the claimants seeking a copy of the EIA on the 26th February, but only receiving it on 12th April! Astonishing!

Implications

The Institute often sees consultations that are inadequate, but very rarely have we encountered such culpable mismanagement of public engagement.

Quite regardless of the lawfulness of the decision, the contempt shown to the local community in Corby is breathtaking. A number of questions arise:

• How could a CCG be empowered to proceed to implement such a service change in breach of its statutory provisions without any senior NHS intervention to ensure compliance…?
• Why did it become necessary for campaigners to go to the High Court to enforce consultative processes that are well-understood in most parts of the NHS in England?
• How did the Health Overview & Scrutiny Committee in Corby fail to insist on its rights to be properly consulted?
• How did the CCG come to spend a large sum of money defending its actions and relying upon highly suspect legal advice, which is privileged – and therefore normally beyond public scrutiny?

Even with promises of somewhat higher funding in the future, the NHS faces huge financial and operational challenges, and, to succeed with major transformations, needs to persuade local communities of the wisdom of making changes that are not necessarily popular. Breaking a clear promise to consult local residents, as in the Corby case will undermine the case for change and forfeit the goodwill of patients and public.

Independent `Quality Assurance’ of pre-consultation processes, and a consultation itself is not necessarily foolproof, but in a case like this, would almost certainly have highlighted breaches of best practice and exposures to legal action in ways that the CCG could not have ignored. Salvaging something from the mess is the prospect that maybe we can write this story up as a Case Study pour encourager les autres.