Consulting on the reconfiguration of hospital services

The Court of Appeal last month rejected a challenge to reorganisation plans by two clinical commissioning groups in the North East. 39 Essex Chambers explains why.

The case of R (Nettleship) v South Tyneside Clinical Commissioning Group [2020] EWCA Civ 46 arose from a public consultation and decisions made regarding the reconfiguration of hospital services (stroke, maternity and gynaecology, and emergency paediatrics) across two hospitals in Sunderland and South Tyneside. The Respondent Clinical Commissioning Groups (“CCGs”) proposed moving certain services from South Tyneside District Hospital to Sunderland District Hospital and the final proposals were the subject of public consultation. The proposals attracted significant high profile opposition and a petition by the campaign group, Save South Tyneside Hospital, to retain consultant-led services at South Tyneside District Hospital received nearly 40,000 signatures (from a population of 152,000).

The Appellant, a local resident of South Tyneside and member of the campaign group, argued that the public consultation process was flawed, essentially because the final options were too similar and specifically did not include the option to “retain services” at South Tyneside District Hospital, in contravention of the the statutory duty of public involvement in section 14Z2(2) of the National Health Service Act (“NHS”) 2006 and also of the principle in R (Moseley) v London Borough of Haringey [2014] UKSC 56 and. The Appellant also argued that the decision was irrational as it failed to meet the objectives of financial and workforce sustainability, and that the respondents should re-consider the decision in light of two announcements in central Government policy to increase funding for the NHS and to remove the tier-2 visa cap on overseas doctors and nurses to encourage recruitment for the NHS.

The case was dismissed at a substantive judicial review hearing in the High Court by HHJ Raeside QC. Permission to appeal was granted by Lindblom LJ who accepted that the appeal was properly arguable and had a real prospect of success.

The Court of Appeal has now dismissed the Appellant’s appeal making general observations on the nature of the CCGs’ statutory duty of public involvement under s. 14Z2(2) of the NHS Act 2006. In particular, the Court of Appeal held that the wording of s. 14Z2(2) did not impose a duty to consult on options which the CCGs deemed to be unviable, unrealistic or unsustainable as they did not represent proposals for change. That interpretation was consistent with the guidance contained in the NHS Service Change Guidance and Participation Guidance. The Court of Appeal considered that the words of s. 14Z2(2), coupled with the statutory guidance, resulted in a duty upon the CCGs to consult only on the options which represented genuine proposals for change. In so finding, the Court of Appeal rejected the Appellant’s submissions that in the absence of literal impossibility, s. 14Z2(2)(b) mandated that the status quo (retention of services options) be part of the consultation.

The Court of Appeal also held that the facts did not come within the ambit of Moseley requiring public consultation on the “retain services” option although it did require passing reference to be made and that was satisfied by what was contained in the public consultation document. The Court of Appeal further held that there was no basis upon which to find that the decisions made were Wednesbury irrational and that the two changes announced by the Government did not amount to a fundamental difference requiring re-consideration in the context of this case.

The Appellant is considering applying for permission to appeal to the Supreme Court.

Vikram Sachdeva QC and Annabel Lee of 39 Essex Chambers acted for the Appellants, instructed by Irwin Mitchell LLP.

Eleanor Grey QC and Adam Fullwood, also of 39 Essex Chambers, acted for the Respondents, instructed by Capsticks LLP.