The Institute takes a keen interest in all legal challenges to a public consultation. It enables us to advise, on a daily basis a range of potential consultors on actions that can minimise the risk of such challenges. It gathers details of all relevant legal cases, and the precedents which have been set by Judges, so that best practice and ’lawful’ practice can be disseminated among our members and beyond.

On the 6th and 7th December 2017,  tCI staff and Associates attended the Judicial Review against Oxfordshire Clinical Commissioning Group (CCG). This was a claim brought by Cherwell district, South Northamptonshire, Stratford-on-Avon district and Banbury town councils, with campaign group ‘Keep the Horton General’ as an interested party.

The consultation had attracted widespread media attention and faced opposition over the way the process was conducted. The CCG split the consultation into two phases, citing yesterday in court the approval given from a variety of scrutiny bodies, with phase two yet to begin. However, opposition to the split consultation felt this was poor practice and that it would prejudice the second phase.

Phase one, which began in January 2017, consulted on:

• the use of hospital beds and moving more care out of hospital and closer to home;
• planned care at the Horton General Hospital including tests and outpatient care;
• acute stroke services in Oxfordshire;
• critical care at the Horton;
• maternity services for women in north Oxfordshire and options for the future delivery of maternity services at the Horton General Hospital, including obstetrics, and the Special Care Baby Unit.

The claimants argued that the public consultation by Oxfordshire CCG was “confusing and flawed”, mainly due to a lack of information which was also misleading.

The Counsel for the CCG argued that the decision to split the consultation was because of the urgency of patient safety, and the need for a downgrade to a midwife-led (C.F consultant-led unit). A temporary downgrade had already been referred to the Secretary of State and the IRP (Independent Reconfiguration Panel) by JHOSC. So, the pressure to consult immediately was intense.

There is currently a second JHOSC referral to the Secretary of State, regarding the permanent downgrade of the unit, which has not yet been acted on. The Judge repeatedly questioned the length of time this can be held for, as well as the powers of the Secretary of State. The fact this referral has not yet been processed, may influence the Judge’s decision on his ruling, but we will await to see the outcome of this.

Issue for discussion:

Were the Joint Health Overview and Scrutiny Committee (JHOSC), NHS England and the Clinical Senate correct in encouraging the CCG to hold a split consultation?

The Judgment will be expected shortly.

If you would like to learn more about the process of legal challenge, contact Rebecca Wright via email at rebeccaw@consultationinstitute.org