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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Buckingham, R (On the Application Of) v NHS Corby Clinical Commissioning Group [2018] EWHC 2080 (Admin) (01 August 2018) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2018/2080.html Cite as: [2018] EWHC 2080 (Admin) |
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Neutral Citation Number: [2018] EWHC 2080 (Admin)
Case No: CO/1605/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre,
2 Park Street, Cardiff, CF10 1ET
Date: 01/08/2018
Before :
HIS HONOUR JUDGE JARMAN QC
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Between:
THE QUEEN (ON THE APPLICATION OF LYN BUCKINGHAM) |
Claimant | |
- and – | ||
Defendant | ||
-and- | ||
LAKESIDE+ LIMITED |
Interested Party |
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- - - - - - - - - - - - - - - - - - - - -
Ms Sarah Sackman and Mr Aidan Wills (instructed by Leigh Day ) for the Claimant
Ms Fenella Morris QC and Ms Rose Grogan (instructed by Mills & Reeve LLP ) for the Defendant
Mr David Lock QC and Mr Richard Clarke instructed by the Interested Party
Hearing dates: 23 July 2018
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Judgment Approved
HH JUDGE JARMAN QC:
1. The Claimant Mrs Buckingham is a founder member of the Save Corby
Urgent Care Action
Group
(the
Group),
founded in 2017 after press reports that the Urgent Care Centre (the Centre) in
Corby
may be closed. She challenges a decision made on 30 January 2018 (the Decision) at an extra-ordinary meeting of the governing body of the Defendant (CCG) to change the provision of health services provided by the Interested Party (Lakeside) at the Centre and to rename it a Same Day Access Hub (the Hub). CCG is under a statutory duty to
commission
acute and community health care services under part 1 of the National Health Service Act 2006 (the 2006 Act), as well as primary healthcare services under part 4.
4. Lakeside challenges the decision on three additional grounds. Fourth, the failure to consult amounts to a breach by CCG of its duty under section 14Z13 of the 2006 Act which requires consultation in respect of a commissioning
plan prepared by CCG under section 14Z11. After some prevarication the final position of CCG is that the plan to fulfil these statutory duties is a two-year plan prepared adopted in 2017. That includes the proposal to change health care provision at the Centre but has not been consulted upon. Fifth, in making the Decision CCG made a number of fundamental errors, the most serious of which was to use a tool called the Manchester Triage Tool (MTT) to conclude that 88% of patients seen at the Centre could have been routinely dealt with by their GPs. There is common ground in the medical evidence filed in these proceedings that the MTT is a tool to assess the level of urgency of patients attending A&E whose conditions are true accidents or emergencies and excludes patients whose conditions do not fall into that category. Sixth, a conflict of interest was not identified, let alone managed, in making the Decision. The CCG Governing Body has GP members who are already contracted to provide appropriate GP services in
Corby.
As one of the primary purposes of the proposed Hub is to supplement the health services provided by local GP practices, in effect CCG is cutting acute care services to provide GP services which some of the members of CCG Governing Body are already contractually obliged to meet.
6. In respect of Lakeside’s additional grounds CCG submit as follows. Fourth, upon a proper interpretation of the statutory provisions as to the commissioning
plan, it is not a prerequisite to consult before any decision to reconfigure the provision of health services. Fifth, for an error of fact to vitiate a public law decision the error must be uncontentious and objectively verifiable. Here there was a reasonable body of opinion to support the CCG’s contention that the vast majority of people attending the Centre could have been dealt with routinely by their GPs. Sixth, CCG have a policy to deal with conflicts of interest which are inherent in the system and that policy was complied with in the present case.
7. Before I deal in turn with those issues I shall set out the background. The Centre was set up in 2013 by CCG’s predecessor who contracted with Lakeside for the provision of health services there. When in the following year CCG assumed the responsibility for commissioning
such services the contract was assigned to it, which contractual arrangements were due to end in March 2017. These have now been extended to the end of March 2019.
9. Unsurprisingly it has proved very popular with use of the Centre increasing each year so that currently there are about 70,000 attendances. Some of these are made by people who attend many times. This is against a background where some patients experience difficulty in making appointments with their GPs, due to a failure of recruitment to keep up with the growing population of Corby.
10. In the early part of 2017 CCG began to engage with the public and stakeholders to test views about aspects of local health care services, including primary care services. It engaged consultants called Arch Communications (UK) limited (Arch) to assist with this engagement. The initial phase, known as the pre-engagement phase, included the development of a community database, a survey of about 700 people and workshops with patients, public and community groups.
Findings from this engagement were reported to the CCG Governing Body in June 2017, with key themes including service quality and ease of access.
“All stakeholder input gathered during this period will be used to inform the shaping of options to be put out to public consultation.
November to January
Subject to assurance process, public consultation about potential changes in care services will be launched on 1 November. It will run for 13 weeks (three months), to 31 January 2018. Building on the earlier period of engagement, it will include: A consultation document outlining how we got to where we are. It will provide information to help the public understand the process and options, and an outline of the options themselves. People will be asked to indicate which option they prefer and why.”
13. In October and November, CCG circulated newsletters. In the former, reference was made to the resumption of engagement activity, which it was said would continue in the run up to public consultation about healthcare services in Corby,
which was expected to start in the coming months. In the November newsletter, it was said that the consultation would start in early 2018. An update was given on the key emerging themes from the pre-consultation engagement. These included: difficulty for some in accessing primary health care; strong support for the Centre, but most were using it as a back-up primary care service. These themes emerged from a report by Arch to CCG, one of the key conclusions being that the Centre was
“…popular, both for its ease of access and quality of service. Any change to it has the potential to be seen as a loss to Corby.”
“Prior to going to consultation, the CCG is planning to run a further workshop for the public to look at the insights it has gained from them, alongside the financial, safety and clinical
evidence, to ask them to help further shape the options.”
15. Also in December, the East Midlands Clinical
Senate (the Senate) reported to CCG on options to go out to consultation. The Senate is an independent body whose members include consultants, GPs, nurses and patient representatives. CCG had originally asked the Senate for a review of the options in October. Two options were put forward both of which involved a triage navigator system through the NHS 111 telephone facility. The Senate had concerns about that aspect, as that was not then the norm for in-hours access to GPs. The Senate accordingly then recommended consultation on a single model but also recommended that such consultation should not take place until the patient navigation system and inequality issues were addressed.
16. After teleconferences, on 4 December 2017 the Senate accepted CCG‘s clarification that the patient navigation system would include the training of clinical
and non-
clinical
staff and that additional analysis of service use at the Centre showed that the activity was largely core primary care. The Senate made a number of further recommendations, including that CCG consider removing the walk-in facility, that patients would be seen in their usual GP practice or at the Hub, and it should be clarified what would happen at 6.30pm when most GP practices close for the day. There was also a recommendation however that CCG should demonstrate that there would not be a disproportionate impact on
Corby’s
most deprived communities by withdrawing the facility at the Centre. The Senate, in its updated report after the teleconferences, agreed that CCG “is now ready to go out to consultation, as the case for change is understood.”
“This will be the last chance for people in Corby
to help shape the proposed changes to healthcare services before the consultation in 2018.”
The chair of CCG Governing Body was then quoted as saying:
“We will be sharing our initial findings from this work at this event, as well as providing the latest information on the financial and clinical
challenges we face. We will then ask them to work with us to develop the proposals that we will then go to public consultation with in 2018.”
18. Slides were presented at the workshop, and one dealt with next steps as follows:
“Completion of proposals for consultation
Assessment by NHS England
2018: 3-month public consultation
Analysis and CCG decision”
19. CCG analysed the information obtained from the pre-consultation engagement and concluded that there was no need to close the Centre. It devised a single option, termed a same day access hub, which was one of the options considered as early as February 2017. Caron Williams is the Director of Commissioning
Strategy at CCG and a member of its Governing Body. In her witness statement she refers to the options considered at that stage and says this:
“It was not the only option discussed but it was agreed to be the CCG’s preferred clinical
model at that stage. However, critically, none of those options explored or considered the possibility of a triage arrangement before the patient accessed the system. The triage and navigating arrangement is something which was only arrived at following the engagement carried out.”
20. On 22 December 2017 the CCG Governing Body adopted an outline business case for that single option, which largely followed the recommendations of the Senate. In particular, the walk-in element at the Centre was to be removed and instead all patients would be triaged and navigated to the most appropriate clinical
service by trained navigators. Those patients who needed a same day appointment would be directly booked into one, but patients with certain conditions would be better managed in primary care.
“The removal of people who should never have been in the service is not consultable and is just part of our public quality and value duties as a CCG. As such the only change is access route and triage point to support the public to make safe sections of support. We have taken legal advice on whether what we are proposing is lawful under 14Z2 but almost more importantly lines up with what we have said we will do as such is OK [there then follows redacted references to legal advice]. The scale of the change has now been managed back to a place where discussing next steps would be really helpful there has been a lot of hard work to get this to a position – your advice and guidance is sought at this stage.
“I recognise the changing conversations and context as outlined…; however, in essence, if the CCG is planning to consult, then the NHSE Assurance guidance (and therefore panel process) applies. As we discussed, there is a useful potential conversation with HOSC re consultation vs detailed engagement plan around the proposed changes.”
“While we recognise the amount of work that has been undertaken and the progress made, having reviewed the documentation, the Panel agrees it is not sufficiently robust to base a successful Panel meeting on the 11 th as planned. Therefore I am standing down the Panel at this stage in order to give you time to strengthen the business case and to enable a successful Panel meeting in the future.
We are also aware that you have taken legal advice as whether you need to consult on these changes now that the model has been further refined and therefore whether you need to move through the NHS England assurance process”
“The CCG are proposing for your consideration, that the change outlined in the attached diagram is not a substantial variation. It is worth noting the confidence of the CCG in asking you to offer your views in this area after testing our thinking with NHSE, our legal team and external clinical
support from the East Midlands
Clinical
Senate.
…The [Senate] recommended that [CCG] engage on a single model of care, ensuring that the phased journey to this model was clearly articulated to the pubic during any further engagement. [CCG] intends to follow this advice.”
30. The Chair responded by email the next day as follows:
“Having read through this and attending a briefing by the CCG I would suggest a extended conversation with the public of Corby
on the suggested changes was enough.
There has already been a long and in depth public consultation with many partners and considerable numbers of the public and I believe many of the publics views have been listened to and took on board.”
31. On 30 January an agenda was published for an extraordinary meeting in public of the CCG Governing Body, set for 6pm later that day. The agenda allowed for questions from members of the public which had been submitted in advance restricted to 3 minutes per person which would be responded to verbally. The Governing Body would then be asked to approve two papers, an Engagement Plan and “Resetting Corby
Healthcare-Local Urgent Care Model.”
32. The executive summary in relation to the Engagement Plan read:
“There has been significant public input into the CCG’s plans for service change. A three-stage process has reached people face to face and online in unprecedented numbers. This process has run over a period of 11 months. This engagement exercise has directly influenced the plans of NHS Corby
CCG and led to a service solution being developed. The service developed retains the elements that the local population have said are really important to them. There is a change in the service plan that requires continued engagement with the public for finalising the development for the proposal -Same Day Access Hub. This change does not constitute a significant material change in the model of care.
As a result of this therefore we believe is no requirement for formal consultation about the plans which we have tested with colleagues. The CCG will continue with its commitment to engagement by involving people in shaping how the service will be accessed. This will build on existing work and feed directly into the contract specification. There is a plan in place to deliver this activity in the next couple of months.”
33. The executive summary in relation to the Urgent Care Model read:
“The work undertaken to review the clinical
model for Urgent and Emergency Care -specifically within Primary Care has confirmed that the CCG as the
commissioner
of services must introduce a delivery model which reflects
clinical
need.
That model requires a mechanism for navigated access to ensure that patients are directed to the correct point of care first time to ensure best clinical
outcomes and minimise delays in receiving appropriate care. All of these changes need to be refined through engagement and scrutiny and then safely procured.”
34. At the outset of the meeting, the Chair confirmed that a response would be given to questions posed in advance from members of the public but there would be no opportunity for a response from the questioner as it was a meeting in public rather than a public meeting. In response to a question from the Group
as to why CCG was not honouring its promise to consult, it was stated that the CCG had a focused plan which had been directly and substantially influenced by public opinion and which did not significantly materially change the model of care so there was no need for formal consultation “and NHS England agrees.” On the Engagement Plan, again a point was raised that the public may feel misled on consultation. Matt Youdale, a director of Arch said that he understood why people might feel misled but relied on the reasons previously given.
“Therefore, we no longer require an assurance panel and, instead, will continue to work NHS England and our system partners to ensure successful implementation of our proposals.”
37. The principles relating to legitimate expectation were not in dispute before me and are drawn largely from the judgment of Laws LJ in R (Niazi) v Secretary of State [2008] EWCA Civ 755, in which he reviewed the leading cases on this well-known public law headline, as he put it. They may be summarised for present purposes as follows with references to the relevant paragraphs in the judgment:
i) Legitimate expectation broadly encompasses two kinds; procedural and substantive [27].
ii) An expectation of either kind may (not must) arise where the decision maker changes or proposes to change an existing policy or practice where to do so would be unfair or an abuse of power [28].
iii) The court is generally the first, not the last, judge of what is unfair or an abuse of power and these “march together” [28].
iv) Those ills are expressed in general terms and what is or is not fair will depend upon the circumstances of the case [28].
v) The paradigm case arises where a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy [29].
vi) In the paradigm case, the court will not allow the decision maker to effect the proposed change without notice or consultation, unless the want of notice or consultation is justified by an overriding legal duty owed by the decision maker, or other countervailing public interest such as the imperative of national security [30].
vii) In such a procedural case the unfairness or abuse of power which the court will check is not merely to do with how harshly the decision bears upon any individual but arises because good administration generally requires that where a public authority has given a plain assurance, it should be held to it. It is the objective standard of public decision making on which the courts insist [30].
43. It is a separate question as to whether those reasons justify the lack of any consultation on the proposal at all. In my judgment they do not, either singularly or cumulatively. The fact that there was only one proposal does not amount to such justification. The Senate recommended that only one option be consulted upon. Nor does the fact that the proposal had been shaped by public engagement. The purpose of that exercise was expressly to shape proposals on which the public would be consulted. The fact that CCG considered that the model of care would not be substantially materially changed under the proposal did not justify the lack of consultation either. The Arch reports to CCG, including the final report, concerning key themes which emerged from the pre-consultation engagement made clear that it was not only the quality of service which made the Centre popular but ease of access, and that any change to it had the potential to be seen as a loss to Corby.
49. I turn now to the duty under that section. Subsection (2) provides so far as material:
“The clinical
commissioning
group
must make arrangements to secure that individuals to whom services are being or may be provided are involved (whether by being consulted or provided with information or in other ways)-
…
(b) in the development and consideration of proposals by the group
for changes in the
commissioning
arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them.”
“(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
54. Subsection (7) sets out the protected characteristics, which include age, and disability
55. The principles were not in dispute before me and were summarised by McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, which summary was approved by the Supreme Court in R (Hotak) v London Borough of Southwark [2015] UKSC 30). In the present case the following principles are particularly material:
a) Such a duty is not a duty to achieve a result but to have due regard to the need to achieve the goals set out in the section;
b) However, a vague awareness of the duty is not enough. The decision maker must have a focused awareness of each element of the duty and the potential impact on the relevant group;
c) If the relevant material is not available, there is a duty to obtain it, often through consultation.
a) Reduce inequalities with respect to their ability to access health services, and
b) Reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services.
59. Attendance at the Centre was broken down by age group.
It was stated that the proposed new model would deliver the same activity level to the current population attending the Centre and extra primary care capacity would be added. No negative impact was identified.
“This EIA and the engagement that is underway informs NHS Corby
of the different needs of each equality
groups
so that gaps in the CCG’s knowledge can be acted upon as part of the consultation process.”
68. In respect of the commissioning
plan regime under the 2006 Act, he submitted that what is required is the preparation of a plan before the start of each financial year after public consultation on the plan. In other words, there is an accountability framework on an annual cycle. The two-year plan adopted in 2017 does not comply with this regime. Plans can be changed, but any proposed change which is significant must be consulted upon beforehand. The proposal which lead to the Decision was such a proposed change, and the requirements of the regime is another reason why there should have been consultation.
70. It is important to bear in mind that this challenge is not made to the adoption of the plan as such, but as an additional reason for holding the consultation should have taken place before the Decision and should have informed it. Given that I have found that there should have been such consultation on the basis of legitimate expectation, then subject to the issue of relief, which I deal with below, it does not appear to me necessary or desirable that I go on to resolve interesting questions of statutory interpretation in relation to the regime on commission
plans when it is the Decision only which is under challenge. With due deference to Mr Lock’s industry and skill, therefore, I do not do so.
71. Mr Lock acknowledged that in order to show that the Decision was vitiated by material errors of fact, the fact must be uncontentious and objectively verifiable (see E v Secretary of State for the Home Department [2004] QB 1044). It is not in dispute that the MTT is not the appropriate tool to justify the CCG proceeding on the basis (for example, in seeking the views of the Senate and NHSE and in information before the CCG Governing Body at the meeting on 30 January 2018) that 88% of attendances at the Centre should have been dealt with through the primary health care system.
74. Ms Morris pointed to other information which was, for example, before the Senate and NHSE who would have been aware of the purpose of the MTT, which justified the CCG stance. To a large extent this is a matter of clinical judgment.