The saga of Horton Hospital, Banbury continues. This month, the Court of Appeal handed down its judgment and rejected campaigners’ claims that consultees were not given a sufficient opportunity to comment on the ‘bed closure test’ for NHS reconfigurations. The case is Keep the Horton General v Oxfordshire CCG.

The ‘bed closure test’ is an interesting idea – announced by Simon Stevens in March 2017, in response to mounting criticism that Trusts were reducing beds, without ensuring that sufficient provision had been made for alternative treatments. It was billed as an addition to the four tests that were originally introduced in the wake of the Lansley reorganisation. It was also seen as a political victory for those who complained that the fragmentation of the NHS in England, had led to Hospital Trusts making changes without ensuring that other parts of the system (e.g. council-run Adult Social Care) could absorb additional demands.

Because this was a high-profile political concession, it is hardly surprising that campaigners against change have seized upon the test as a yardstick against which to assess proposals featuring in a consultation. So it is important to understand how the Courts have interpreted the requirement.

In the original Horton case, the December 2017 judgment dismissed the grounds for Judicial Review, and Judge Mostyn attracted much comment for having been persuaded to accept last-minute CCG evidence that helped persuade him that plans to close obstetrics and other functions were fair. Elsewhere, though, he did accept that the CCG should have consulted on the new test, and although this was a flaw in the consultation, he did not regard it as sufficiently serious to warrant the whole exercise being unfair.

Last year, we then had the legal challenge to the NHS reconfiguration in Dorset – Hinsull v Dorset CCG and once again, the bed closure test came under scrutiny. On this occasion, the Court took a different view and decided that there was no obligation on the CCG to consult in respect of the new test. The Court of Appeal has now come down in favour of the Dorset interpretation. It argues that this is a hurdle that CCGs must overcome as it prepares its business case. It is part of the NHS England quality assurance process, and is not a requirement for consultation – even though local NHS bodies might voluntarily include it in their consultations. The Court is quite clear on this point:-

“It is NHS England that has to be satisfied about them before they will allow proposals to go forward. It is not for CCGs thereafter to invite the public to say whether they have been satisfied or not.”

Now, the Dorset case is itself subject to further appeal, and there will be many who believe that the public has a ‘legitimate expectation’ that on a matter such as this, the conclusion that the bed closure test has been satisfied should be available for public discussion. There is also an argument on transparency (eg at the Save our Surgery v Joint Committee of CCGs in 2013). Half-acknowledging this, the Court of Appeal adds the following: –

“However, that is not to say that any member of the public would not be quite entitled, in objecting to a proposal, to make the argument that NHS England should not have been satisfied as to any one or more of the five tests. Such argument might carry little weight when the “expert” body (as Sir Stephen called it in Hinsull’s case), which set the tests in the first place, has expressed itself as content.

It is strange to see a Court rely these days on the old-fashioned premise that if the experts have formed a view, then there is little purpose to a consultation. Indeed, over such contentious matters as local NHS services, there is sufficient disagreement among clinicians themselves as to warrant a wider and more public debate.

Two other matters to note about the Court of Appeal’s ruling.

1. Part of the claimants’ case was that the information provided to consultees was inadequate. For example pro’s and con’s of the proposal were not published in a balanced way. It led to the Court commenting that the potential disadvantages of the proposal were ‘obvious’ and did not need spelling out. This will strike many public engagement specialists as highly questionable.
2. The clinching argument seems to be that there was little evidence that the inadequacies of the consultation – whether on the bed closure test or anything else – actually inhibited consultees from expressing their views in acceptable numbers.

In conclusion, what these cases – and others that have challenged NHS reconfigurations in recent years – show is that decisions on the legality of a post-consultation decision can turn on narrow matters of interpretation, often of disproportionate interest only to lawyers, whereas the standards of best practice are much easier to understand and apply. The Institute places its emphasis firmly on the latter, but has to be conscious that mistakes can often lead to costly legal challenges which are best avoided by getting it right first time!