High Court judge dismisses challenge over lack of public consultation on NHS hospital reconfiguration in Hertfordshire

A High Court judge has dismissed a judicial review challenge over the reorganisation of hospital provision in Hertfordshire.

The claimant in Glatter v NHS Herts Valleys Clinical Commissioning Group [2021] EWHC 12 (Admin) had argued that the CCG was obliged to conduct a public consultation before making the relevant decisions in May and June 2019 with the support of the West Hertfordshire Hospitals NHS Trust (the interested party).

The claimant coordinates the New Hospital Campaign Group (NHCG) which favours the building of a new emergency and specialist hospital on a clear site in Hertfordshire.

The first decision challenged, made on 30 May 2019 was to select four of eight options for further consideration and rule out the other four. The four ruled out options included two versions of the new build option, which was considered too expensive.

The second decision challenged, made on 11 July 2019, was to choose one of the four remaining options: to spend money on improvements to services at three existing hospitals, Watford General Hospital (Watford General), St Albans City Hospital (St Albans City) and Hemel Hempstead Hospital (Hemel Hempstead).

The complaint was that the second decision too was taken without public consultation which could have led to a new build being approved instead.

The CCG and the Trust argued that they were under no statutory or common law duty to consult publicly. They said their obligation, fully performed, was to "involve" service users in "development and consideration of proposals …. for change" (National Health Service Act 2006, as amended (the 2006 Act), sections 14Z2(2)(b) and 242(1B)(b)). They said they were not required to consult on the proposals for change, especially those they rationally considered unaffordable.

The CCG and the Trust also submitted that even if the CCG should have undertaken a public consultation, relief should be refused because it was highly likely the outcome would have been substantially the same (section 31(2A) of the Senior Courts Act 1981) and because granting relief now would serve no useful purpose and would be contrary to good administration. The new build options were indeed too expensive; not enough money was available to make them viable, they submitted.

Mr Justice Kerr did not accept that there was any legal flaw in the two decisions challenged.

The High Court judge said he agreed with the CCG and the Trust that the duty was to ensure public involvement in the decision making process and that was not the same thing as an obligation to consult. “The statutory provisions themselves say that consultation is but one way of performing the duty. There are others, including providing information.”

He said he did not agree that passage from two NHS England guidance documents relied on by the claimant’s QC bore the weight he placed upon them, elevating the duty of public involvement to a duty to carry out a formal consultation exercise.

“It would be inconsistent with the wording of the statutory duty for me to decide that the only way the CCG and the Trust could perform it is by full public consultation. If that conclusion could ever be properly reached, there would have to be no rational alternative, an unlikely proposition I roundly reject,” the judge said.

“Nor, in any case, do the citations from the guidance mandate the use of a public consultation exercise. They replicate rather than enlarge the statutory duty of public involvement. That is what guidance documents often do. To say that the duty must be performed in a manner that is "fair and proportionate" is not a way of expanding it or changing its nature. Public functions ordinarily must be carried out in that way, with or without a guidance document saying so.”

Mr Justice Kerr said the history of the reorganisation did not establish “anything close to a common law obligation” to engage in a public consultation exercise, over and above the statutory duty of public involvement and grafted onto it.

The judge said it was not enough for the claimant to show, as he had done, that less than full and comprehensive information was provided to him, the NHCG and other interested parties.

“The approach of the CCG and the Trust was (subject always to obligations under the freedom of information legislation) to control the flow of information and to engage interested parties in the discussion through public meetings and the stakeholder evaluation group, without acceding to the demands of the claimant and others for unlimited access to information.”

That method of proceeding was not necessarily inconsistent with performance of the duty of public involvement, the judge said. “It is true that the claimant and others were not given access to the detailed mathematical calculations and projections used to estimate the cost of the new build options. The contribution of Mr Scott [a supporter of the NHCG with experience of financial appraisals] and others to the debate could have been more fully informed than it was, had they had full access to the figures, or if his request for a meeting had been granted. But they were not thereby disabled from challenging the unaffordability of the new build options, nor the rigidity of the £350 million capital expenditure limit.”

Mr Justice Kerr said the provision of the headline figures enabled them to make their case and they were thereby involved in the decision making process. “The statutory duty required no more than that on the facts here, in my judgment. The gulf between £350 million and some £700 million was very great.”

The judge noted that the rigidity of the £350 million limit was documented in a formal letter from two national NHS bodies. “There was a deadline of July 2019 for submitting the funding bid. The process had been going on for an inordinately long time and the hospital estate was in poor condition and getting worse. It was right for the CCG and the Trust to be concerned about avoidance of delay, as shown by the fact that even now a final decision and implementation is awaited.”

Mr Justice Kerr also considered what would have happened if he had come to the view that the CCG ought to have consulted publicly before making the two decisions and that they were taken unlawfully in consequence of its failure to do so.

He said it appeared to him highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred. He would therefore, if the point had arisen, considered himself obliged to refuse relief under s.31(2A) of the Senior Courts Act 1981.

1 Crown Office Row, whose Jeremy Hyam QC appeared for the defendant CCG, said: “The case has helpfully clarified that the duty of public involvement and related statutory guidance does not entail a to a duty to carry out a formal consultation exercise whenever there is a substantial change or variation to services. Unless in the circumstances there was no rational alternative to formal public consultation, significant public engagement and involvement even if falling short of full formal consultation, was sufficient discharge of the CCGs s.14S(2) duties under the NHS Act 2006.”