Meeting expectations

The first ever judicial review challenge by one NHS body of a decision by another offers useful guidance on the applicability of the legitimate expectation principle to public consultation, writes Ellen Wiles.

The judicial review in Royal Brompton & Harefield NHS Foundation Trust v Joint Committee of Primary Care Trusts [2011] EWHC 2986 (Admin) involved a successful challenge to a consultation carried out in relation to the reconfiguration of NHS services for children’s congenital heart conditions in England.

It succeeded on the ground that there had been a breach of a legitimate expectation in relation to the decision-making process to be used in the course of a consultation.

Background

The Claimant, RBH Trust, is a specialist heart and lung centre. It is the largest of its kind in the UK and one of the largest in Europe. Its hospitals have, for many decades, been at the forefront of treatment for complex heart and lung disease, and its paediatric service provides a specialist service for children.

It challenged a consultation document, published by the Joint Committee of Primary Care Trusts (‘JCPCT’) in March 2011, entitled ‘Safe and Sustainable: A New Vision for Children’s Congenital Heart Services in England’. The consultation proposed that the number of centres providing paediatric cardiac surgical services be reduced from eleven to either six or seven, and that the paediatric congenital cardiac service be reconfigured into one of four national configuration options. Each of the four preferred options provided for only two London surgical centres, namely Evelina Children’s Hospital (Evelina) and Great Ormond Street Hospital for Children (GOSH).

Challenges

RBH contended that two decisions made in the consultation process were legally flawed: first, to exclude from the proposed options a three London centre option; and second, to exclude the RBH Trust from the preferred two London centre options.

In challenging those two decisions, RBH relied on four main grounds:

1. that those decisions had been predetermined;
2. that the consultation process was irrational;
3. that the process was vitiated by misinformation or bias; and
4. that there had been a breach of legitimate expectation in respect of the review.

Only one of the four grounds was successful.

Predetermination

In support of the first ground, on ‘predetermination’, RBH submitted that the evidence showed that that position had been reached as far back as July 2010, that the determination to have only two London centres was probably influenced by a ‘perception’ that London had to ‘lose’ a centre in order to make the process as a whole more palatable nationally, and that the two London centres would be GOSH and the Evelina. By looking at the wording of the Consultation Document as a whole, it was contended that its whole structure was such that an option for two as opposed to three London centres was realistically the only likely outcome of the exercise.

The judge disagreed. He held that it was open to consultees to take issue with the exclusion of RBH from the two centre option. The evidence, including various reports and letters, did not support a conclusion that JCPCT had a closed mind to RBH being selected. He therefore held that the argument that there had been predetermination by JCPCT was unsustainable. It had been entitled to identify and to consult on its preferred options, which did not include a “three London centre” model and excluded RBH. Such a predisposition did not amount to predetermination.

Irrationality

In support of the second ground, on irrationality, RBH submitted that the decisions made by JCPCT as the two London centre option and the exclusion of RBH were irrational and as such the consultation process was fundamentally flawed.

The judge disagreed. He noted that JR is available to challenge decisions which have legal consequences. Although a JR challenge can be made before a substantive event, the proposals in this case were still at the formative stage and as such they were not justiciable. Moreover, there is no duty to consult on all viable options. It was open to JCPCT to identify its preferred options. It was also open to consultees to challenge the weight given to the arguments in favour of a three London centre option and including RBH.

It could not therefore be said that to prefer a two London centre option at the consultation stage was irrational.

Misinformation/bias

In support of the third ground, on ‘misinformation and/or bias’, RBH contended that the passages so distorted the consultation process as to preclude a properly informed response from consultees and as such the process was procedurally unfair.

The submission was based upon an analysis of two elements of the Consultation Document. First, there was the manner in which information as to the activity level for paediatric congenital cardiac procedures in London was presented. For instance, the summary of the advice given by the Steering Group was that ‘two centres, rather than three, are better placed to develop and lead a congenital heart network for London, South East England and East of England’, which RBH submitted was grossly misleading. Second, there was the scoring of deliverability in the Configuration Assessment. RBH Trust received the lowest score of 2, as against 3 for the Evelina. An explanation advanced in the text was that since the Paediatric Intensive Care Unit (PICU) at RBH ‘exists predominantly to support cardiac surgery, we propose it is scored lower than the Evelina Children’s Hospital on the subcriterion which provided that ‘the negative impact for the provision of paediatric intensive care and other interdependent services is kept to a minimum.’

RBH gave evidence that should paediatric congenital cardiac surgery no longer be carried out there, its PICU would no longer be viable, and accordingly the negative impact as a whole would be greater, not lesser.

The judge held that this argument was misconceived since the impact on non-cardiac patients at RBH would be more manageable than for others whose PICUs contained more non-cardiac patients.

As to bias, R had relied on the fact that two members of the relevant steering group held posts at the other two London-based hospitals; however, it was held that the group’s role had merely been to make recommendations to the decision maker, JCPCT, which had not merely rubber-stamped the group’s recommendations.

The judge therefore concluded that the process had neither been vitiated by misinformation nor bias.

Legitimate expectation

In support of the final ground, on ‘legitimate expectation’, RBH submitted that there was a clear and unequivocal representation by the JCPCT that the scoring from the assessment evaluation would not have any direct bearing upon the configuration evaluation. In fact, the evidence given in relation to the scoring method made clear that the assessment scores, on matters such as the specific relevancy to paediatric cardiac surgical services of research projects undertaken by RBH, were going to be considered in the configuration evaluation.

The judge held that there was a clear and unequivocal representation that the information supplied in the assessment stage would not have a direct bearing on the scoring of the configuration evaluation process.

JCPCT contended that, on the evidence, had RBH been given an opportunity to make further submissions as to its research capacity it would have made no difference to its ranking in the comparative assessment.

The judge disagreed; he concluded that the failure to meet the RBH Trust’s legitimate expectation as to the use to which the information provided in response to the self-assessment Template, and the likely consequential effect upon the assessment of ‘Quality’ in the inter London centre scoring, rendered the consultation process unfair to the Trust, the unfairness being of such a magnitude as to lead to the conclusion that the process went radically wrong.

The judge therefore determined that the consultation was unlawful, and it was quashed.

Comment

This case provides useful guidance on the applicability of the legitimate expectation principle to public consultations. In particular, it underlines the importance that a consulting body adheres to any clear representations it makes in advance about its decision-making process, in order for that process to be fair. It makes clear, however, that a consulting body is not precluded from setting out its preferred options in its consultation document, or from using language which steers consultees towards those options.

The decision is also of interest for the detailed reasoning provided in response to the further unsuccessful grounds, making clear the robustness with which the courts will deal with public law challenges to consultation procedures.

Ellen Wiles is a barrister at 39 Essex Street. She can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared in the set’s Public Law Newsletter.