An Institute commentary on Cherwell District Council v Oxfordshire CCG [2017] EWHC 3349 (Admin)

Just before the holidays, the long-awaited Judicial Review into proposed changes to maternity services in the Horton Hospital, Banbury was decided. The Court rejected arguments that the consultation was unfair, but the judgment handed down by Mr Justice Mostyn may not quite be the Christmas present NHS Managers might have wanted.

The facts are simple enough. Obstetric services had already been closed ‘temporarily’ so that most expectant mothers have travelled to Oxford for their births. The NHS decided to consult on making this arrangement permanent, whilst simultaneously announcing that a further consultation will consider changes to emergency services. Campaigners naturally argued that splitting into two consultations meant that they were not given the full picture in a way that enabled them to give ‘intelligent consideration’ (Gunning Principle 2) to the initial proposals.

They were to be disappointed. The Judge did not believe this amounted to unfairness, though many an eyebrow will be raised at parts of his judgment.

• The CCG is statutorily required to insert into its constitution, a description of the arrangements it has made for public involvement, and claimants argued that it had not done so. The Judge dismissed this as an ‘arid technical irrelevance’ – which may cause Ministers and senior NHS Managers some embarrassment. Politicians may question the point of inserting requirements like this into Acts of Parliament if the Courts will not take them seriously. Claimants in this and other cases will surely argue that a failure on this point is relevant in demonstrating a lack of sincerity by an organisation when discharging its consultation obligations.
• In the High Court, the CCG produced a range of facts and figures on the use of obstetric and paediatric services, which it had refused to disclose to the campaigners. This material convinced the Judge that the first consultation’s outcome would not prejudice the planned second consultation. The Judge admits however, that, in its absence, the claimants could reasonably claim that the latter exercise might be pre-determined, but still insisted that this did not amount to unfairness. This seems quite contrary to the comparable situation in the Save our Surgery (Leeds Infirmary) case in 2013 where Mrs Justice Nicola Davies ruled that a lack of transparency on key information was unfair.
• In discussing whether a consultation is unfair, the Judge says, “I think it is likely to be determined by the ‘I know it when I see it’ legal technique.” This is not exactly helpful to the hundreds of public servants trying to ensure they comply with the law of consultation.
• The Judge had to consider whether the introduction of a new NHS England test to examine the case for withdrawing hospital beds had been met. Although he says that in this respect the consultation was flawed, ‘the omission, while regrettable, and somewhat troubling, was not sufficiently material to lead to a finding that the consultation was unfair…’
• The case turned in part on the credibility of the impact predicted for the decision. The NHS argued that making the Horton Hospital a free-standing Midwifery-led Unit would (per the consultation paper) lead to a reduction in births from 1,466 in 2015/2016 to somewhere between 200 and 500 – in percentage terms, approx. 13% to 34%. Campaigners argued that evidence elsewhere indicated that the anticipated figure would be about 6% and that therefore the CCG was misleading the public. The Judge rejected this argument – ‘I do not believe that anyone reading the document could have been in the slightest doubt as to the scope and impact of the proposals …’ It begs several questions as to the accuracy with which consultors must approach impact assessments (See Tuesday Topic 328 – September 2017)

 As with other legal challenges of this nature, cases can go either way depending upon the arguments advanced by lawyers and the views of individual judges. In this case, neither the NHS or the local authorities would have been certain of success, and campaigners will have been relying as much on political pressure as on legal action.

The Institute believes that a better public consultation process might have saved enormous costs and delays, and if the case is referred to the Independent Reconfiguration Panel, we predict that this will be its conclusion. In the meantime, there is a possible Appeal, at which some of the points raised in this article may be re-examined. Uncertainty of this kind is bad for the NHS and bad for public engagement. We urgently need better ways of resolving disputes about consultations.

Rhion H Jones LL.B
The Consultation Institute
December 2017