Failure of NHS trust to consult public on temporary closure of A&E department was unlawful, High Court judge rules

An NHS Trust acted unlawfully when it failed to consult service users before deciding to close a hospital's A&E department temporarily, a High Court judge has ruled.

In Dawson, R (On the Application Of) v United Lincolnshire Hospitals NHS Trust [2021] EWHC 928 (Admin) Mr Justice Linden said the defendant exhibited "wholesale failure to comply" with the obligation to secure service user involvement in the decision-making process.

The plan was in response to a letter the trust received from NHS England and NHS Improvement (NHSEI) on 29 April 2020, which required that NHS Trusts "step up" non-Covid-19 urgent services as soon as possible. It also asked Trusts to work across local systems and regional teams over the next ten days to decide whether there was further capacity for at least some routine non-urgent elective care.

In response, United Lincolnshire Hospitals decided to designate Grantham and District Hospital a "Green Site". This meant that Covid patients would not be treated at the hospital to allow treatments like elective surgery and chemotherapy to occur on the site. All patients treated at the hospital would be tested for Covid-19, and the A&E department would be replaced with a walk-in Urgent Treatment Centre.

Almost two months after receiving the letter, the NHS Trust (ULHNT) publicised its plans (on 8 June 2020), giving the public three days to respond to the proposal.

The claimant, represented by Vikram Sachdeva QC and Catherine Dobson of 39 Essex Chambers and Clara Benn of 7KBW, instructed by Irwin Mitchell, argued two grounds:

1. In coming to its decision, the defendant breached section 242(1B)(b) and (c) of the National Health Service Act 2006 by failing to make arrangements which secured that service users were involved (a) in the development and consideration of the proposals for the designation of the hospital as a Green site and (b) in the making of the decision itself;
2. The decision was irrational or disclosed an improper purpose or was insufficiently reasoned. In the event, before the judge the challenge on Ground 2 was limited to a complaint that the decision was inadequately reasoned which, it was said, "gives rise to the inference that the decision was irrational and/or was taken for an improper purpose".

The trust denied both grounds, saying that it was aware of its obligations under the 2006 Act and it had complied with them.

According to the trust's counsel – Fenella Morris QC and Peter Mant of 39 Essex Chambers, insructed by Capsticks – the pandemic put "extraordinary" demands on trust personnel. Deadlines given to them by NHSEI were too tight to allow more involvement from the public in the decision-making process, and their plans were undergoing a constant process of modification and might not have gone ahead.

Service users were involved at the earliest practical opportunity, the defendant's counsel argued, and the arrangements which were made were adequate in the circumstances given, also, the temporary nature of the decision, the fact that it was to be kept under review and the fact that service users had the opportunity to express their views after the Decision had been taken and implemented.

However, Mr Justice Linden determined that the trust breached both section 242 (1B) (b) and (c) of the National Health Service Act 2006 Act. Section 242 is one of several provisions in the 2006 Act which place obligations on NHS bodies to make arrangements to secure the involvement of service users in decision-making about services.

Justice Linden said that he did not think the arrangements the trust made complied with the 2006 Act because the three-day period was not enough time for service users to understand the proposal or respond. He also found that the ways that users were able to respond were limited and did not constitute "meaningful involvement" in the making of the decision.

Faith Salih, Associate Solicitor at Irwin Mitchell, said: "The judgment is a significant victory for patients. Any plans to downgrade hospital services such as A&E provision must follow a fair and lawful process. That did not happen in this case and the court's decision sends a strong message about the importance of the legal duty to involve service users before plans are finalised, while involvement can still be meaningful.

"Jayne (the claimant) is delighted that her case has been successful and a declaration that the trust acted unlawfully has been granted. Although the trust was under pressure to respond to the Covid-19 pandemic and considered it was acting in the interests of the Lincolnshire population, it was strongly felt that the views of hospital users were not taken into account and that people were denied the opportunity to comment while the proposals were being developed."

She added: "We are pleased that the trust has recently decided to restore services at Grantham.

"The court has recognised that the purpose of the legal duty is that the involvement of service users will lead to better informed decisions and will increase the likelihood that the human impact and implications of plans, proposals and decisions are taken into account. This is an important duty and not something that Trusts can opt out of."

United Lincolnshire Hospitals has been approached for comment.

Adam Carey