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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Keep Wythenshawe Special Ltd v NHS Central Manchester CCG & Ors [2016] EWHC 17 (Admin) (07 January 2016) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2016/17.html Cite as: [2016] EWHC 17 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT MANCHESTER
1 Bridge Street West, Manchester, M60 9DJ |
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B e f o r e :
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KEEP WYTHENSHAWE SPECIAL LIMITED |
Claimant |
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NHS CENTRAL MANCHESTER CCG (1) |
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NHS NORTH MANCHESTER CCG (2) |
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NHS SOUTH MANCHESTER CCG (3) |
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NHS STOCKPORT CCG (4) |
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NHS TAMESIDE AND GLOSSOP CCG (5) |
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NHS BOLTON CCG (6) |
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NHS BURY CCG (7) |
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NHS SALFORD CCG (8) |
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NHS WIGAN CCG (9) |
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NHS HEYWOOD MIDDLETON AND ROCHDALE CCG (10) |
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NHS TRAFFORD CCG (11) |
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NHS OLDHAM CCG (12) |
Defendants |
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UNIVERSITY HOSPITAL OF SOUTH MANCHESTER NHS FOUNDATION TRUST (1) |
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NHS NORTH DERBYSHIRE CCG (2) |
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DERBYSHIRE COUNTY COUNCIL (3) |
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STOCKPORT NHS FOUNDATION TRUST (4) |
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NHS COMMISSIONING BOARD (NHS ENGLAND) (5) |
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HIGH PEAK BOROUGH COUNCIL (6) |
Interested Parties |
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Philip Havers QC, Jeremy Hyam and Kate Beattie (instructed by Hempsons) for the Defendant
David Lock QC and Robert Walton(instructed by Hill Dickinson) for the First Interested Party
Jason Coppel QC and Hannah Slarks (instructed by Bevan Brittan) for the Fourth Interested Party
Daniel Stilitz QC (instructed by NHS Commissioning Board) for the Fifth Interested Party
Hearing dates: 9th & 10th December 2015
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Crown Copyright ©
MR JUSTICE DOVE :
Introduction
The facts
"In summary, the proposed model of care for [hospital services] includes:
Deliver care locally for the majority of patients-local services;
Upgrade Local Services so that all sites achieve Greater Manchester Quality and Safety standards;
Care for the small number of patients with "once in a lifetime" life threatening illnesses and injuries in a smaller number of Specialist Services delivered in line with best practice standards;
To achieve this, create Single Services-multi-disciplinary teams responsible for the delivery of Specialist and Local Services across a sector of Greater Manchester;
Consultant led services delivered to best practice standards
Standardise and improve children's community care to treat as many children as is safe and appropriate to do so in the community;
Work with the Ambulance Service to direct patients to the right place at the right time, including to Community and Primary Care if appropriate as well as to Local and Specialist services, and;
Effective clinical leadership and decision making to ensure high quality, efficient care."
"We need help to shape our plans and we are specifically asking you about proposed changes to how we look after the (small number of) sickest people in hospital…
For hospital services, we are proposing changes to A&E, acute medicine, and general surgery. These changes are supported by the principle that everyone in Greater Manchester should have access to the highest standards of care wherever they live, whatever the time of day or night, or whether it is a weekday or the weekend…
In acute medicine, the Greater Manchester quality and safety standards will raise the standard of care for our patients across all hospitals in Greater Manchester, both General and Specialist…
For a small number of patients (those who are the most unwell) a smaller number of hospitals will provide the most specialised care. These Specialist Hospitals will provide emergency and high-risk surgery as well as the services a local General Hospital provides. The 12 clinical commissioning groups will be making a decision on the way these hospital services are organised depending on what you tell us during this consultation."
"Healthier Together is a review of health and care in Greater Manchester, we are looking at how to provide the best care for you and your family. Please tell us what you think by filling in the form opposite. Please remember that this is a consultation and not a 'vote'. We will be taking into account your responses along with a wide range of other information, including the views of staff, professional groups and key organisations."
It went on to provide contact details for HT including a telephone number, email address and the location of social media presences.
"There is unacceptable variation in the quality of care and outcomes for patients across Greater Manchester. Evidence suggests that the best results are seen when hospital care is delivered under the direction of the most senior and experienced doctor. We know that there is variation in the number of consultant doctors across Greater Manchester and this may be contributing to a corresponding variation in the quality of care and patient's experience in hospitals in Greater Manchester."
"Specialist services provided locally
Whilst emergency and high risk General Surgery operations will not be provided at General Hospitals anymore, the other parts of hospital care will still be provided locally. For example, there will be rapid access clinics for patients arriving at A&E who need an urgent surgical assessment. Similarly, following an emergency operation, patients can see their surgeon in an outpatient clinic at their local general hospital- for example specific cancer or chemotherapy treatments, and diagnostic tests…
As described earlier, Specialist Hospitals will work in a single service with general hospitals. Across Greater Manchester a smaller number of specialist hospitals will provide specialist services for the small number of very sick patients. Therefore, these hospitals delivering specialist services will provide care for patients from both the immediate locality of the hospital but also those in the surrounding localities.
This means that Specialist Hospitals will see a larger number of patients each year from across a larger geography of Greater Manchester, enabling them to become centres of excellence in caring for seriously ill patients."
"Wythenshawe Hospital has an existing portfolio of high quality specialist services. Whilst some of the services are not directly within the scope of the Healthier Together consultation, they remain of critical importance to the overall service for the people of Greater Manchester and the Southern Sector in particular. Due to the interdependencies of these specialist services it is important that these services are maintained...
While the consultation is not about our highly specialist services we feel the longer term unintended consequences of not being recognised as a specialist site would inevitably mean our ability to maintain and enhance our specialist services could be compromised.
Conclusion
UHSM supports the ambition of Healthier Together and looks forward to working collaboratively with colleagues in health and social care to support the much needed changes to primary care, joined up care and how hospitals work across Greater Manchester.
UHSM recommends, based on clinical evidence and strategic vision for the Greater Manchester health care economy, Wythenshawe Hospital should be confirmed as a specialist site under consultation options for 4.3 or 5.2/5.3."
"The principal of a single service model in the Southern Sector, applies across a range of specialised services including "specialist" services as described in Healthier Together. We believe teams of clinicians working across the Southern Sector will provide high quality, specialist and specialised care for the population of the Southern Sector. We recognise that the exact solution may differ for different services. It is envisaged that this model of care will address the volume and complexity of emergency surgery and high-risk elective general surgery for the local Southern Sector population. We also believe that this will need to be developed in a phased manner…
We are also concerned that if "specialist" services were not available in the Southern Sector people living in the High Peak area of Derbyshire and Cheshire (catchment areas of the Southern Sector) will have to travel further, both by ambulance and public transport.
It is very clear that if there were only to be four "specialist" sites within Greater Manchester, there must be one in the Southern Sector."
"The group agreed that the transport analysis will be refreshed for the decision making phase to include those areas outside of the Greater Manchester CCG boundary where the closest hospital is a Greater Manchester hospital. This will incorporate those patient groups that currently use Greater Manchester hospitals, and are affected by the proposals, into the transport analysis."
"The Transport Group discussed and considered this feedback at the meeting on the 17th December 2014. The group agreed that the analysis used to support the pre-consultation phase of the programme should now be updated for the decision making phase to take account of current road network and public transport systems.
This updated analysis reflects the latest available public transport data (July 2014) and includes the Manchester Airport Metrolink line which has been recently added to the network."
"It is clear that on-going transport and infrastructure projects may also be completed during implementation, for example the SEMMS link road is due to be completed in the autumn of 2017. Such developments will need to be kept under review during the implementation to understand any changes in impacts for affected residents."
As a result the modelling took no account of any effects on journey time which might arise as a consequence of the completion of the SEMMS road in the decision making process.
"A number of responses indicated that patients who live outside the GM CCG boundary, but use GM hospitals, had not been considered in the travel analysis used in the pre consultation phase. As a result, the boundary for the analysis has been expanded to cover all addresses that are currently closest to a GM hospital (e.g. North Derbyshire, Eastern Cheshire, Chorley and South Ribble). This allows a fuller understanding of the potential impact of patients going to hospitals outside of Greater Manchester if, in future, these hospitals are now their 'nearest'. This wider catchment area is called the "GM hospital catchment area".
The result of expanding this analysis is that for car off peak travel, the total catchment population within the analysis has been expanded from a total GM CCG population of 2.7m to 2.8m under the wider GM hospital catchment area. When analysing the origin of relevant inpatient activity provided in GM hospitals, this wider catchment area covered 97% of GM hospital activity."
"We also discussed, and made a priority for further analysis in the data, that during the public consultation the HTCiC received data from North Derbyshire CCG which showed that consistently for the last 3 years residents of those postcodes within the catchment area use Greater Manchester hospitals ~60% of the time (and indeed Stepping Hill ~57% of the time). This was confirmed to be due to the weather conditions affecting the roads over the Pennines to Sheffield and Chesterfield."
"To assess if this catchment based on travel times provided an accurate reflection of actual patient usage of Greater Manchester hospital, Hospital Episode Statistic (HES) data from 2013/4 was analysed. As reported to the TAG the catchment area of transport analysis covered 98% of the in scope activity in Greater Manchester Hospitals. Our analysis found that for 97.3% of Lower Super Output Areas (LSOA) that were included in the newly drawn catchment area, >75% of actual hospital attendances from that LSOA used a Greater Manchester hospital in the time period analysed. The group therefore concluded that the newly drawn catchment area strongly reflected historic patient use and as such provides an accurate reflection of the true Greater Manchester hospital catchment area."
"In practical terms, had an analysis of past quality and safety within the different hospitals been undertaken this would have been of limited practical use for the HTCiC in determining which option to choose. Whether a hospital has historically provided care with high quality and safety is not, unfortunately, always and necessarily a strong guide to the future of care. There have been rapid, and dramatic failings from previously well considered hospitals within the NHS noted in the national media.
Such an analysis may provide a moment in time analysis (limited to the moment the data was extracted) however, extrapolating into the future based on the past would be, in my view, highly speculative. This would also require a broader examination in the reliability of such data for the purpose to which it was put. I have seen nothing that suggests that such reliability can be extrapolated from historic findings."
"C&PSG notes that FTT data has changed since the PCBC with some Trusts improving and others worsening. CPSG therefore advise that as current quality and safety standard will be improved in all sites, this should not be used as a criteria to determine the number of single services."
"The Cardiovascular Project Co-dependencies framework lists General Surgery as "vital but does not necessarily require collocation in the same hospital"
In the light of this and the other evidence noted the report's assessment was that:
"No co-location requirement was identified through the literature review."
"Evidence summary
The above co-dependency framework reviewed recommends that "The framework recommends the onsite co-location of all specialised burn services with the following…general surgery (adult services only)." No requirement for 24/7 access is identified.
A similar recommendation is made in the specialised commissioning specification; "Burn Centres will be co-located with or have on-site access to…General Surgery…"
Assessment
…
The specification requires access to general surgery which will be available whether or not UHSM is a 'local' or a 'specialist' site as all sites will continue to operate elective, day case and outpatient care in the day seven days per week and a dedicated on-call consultant out of hours.
There is already a robust pathway in place for the transfer of acutely unwell burns patients from Emergency Departments across Greater Manchester.
UHSM will need to maintain 24/7 radiology, pathology and transfusion services. Should UHSM be designated a 'local' site this provision would be over and above the 'local'.
Conclusion: 24/7 radiology, pathology and transfusion services should be maintained at UHSM"
"There is no requirement for co-location with other services".
In the light of this evidence the report concluded that no action was required in respect of this co-dependency.
"To summarise, five services at UHSM have a critical interdependency with Specialist and/or Interventional Radiology and assurance is required that any change proposed would not undermine this provision. A number of services within the Trust have a critical interdependency with ICU. The Trust currently has two ICU facilities (one in the Cardiothoracic centre and a general ICU). We anticipate that the Cardiac ICU would remain, however assurance is required that this could be sustained in the context of changes affecting the wider hospital, further there are a number of non-Cardiothoracic services (4) currently dependent on the general ICU which requires consideration. The ability to sustain ECMO services against the context of the significantly reduced ICU bed-base across the Trust also needs consideration.
Of particular concern, which requires further exploration, is the potential impact of a change to services at UHSM on the Specialised Burns service. There are a number of 24 hour interdependencies for this service (in addition to ICU) which include 24/7 Radiology; 24/7 Pathology; and 24/7 Blood Transfusion Laboratory services and round-the-clock anaesthetic services. Specific assurances are required that any change to the role of UHSM would not impact the sustainability of the Burns service."
"The North of England Clinical Senate Review Panel concludes that:
The Healthier Together programme has gone to great lengths to ensure that at this stage in their work, the clinical co-dependencies of the in-scope specialities have been considered and understood;
There is good evidence of a robust and wide-ranging consultation process;
The conclusions reached by the programme on the clinical co-dependencies of the in-scope services in the context of the proposed Single Service model-of-care are consistent with the views of the Review Panel and with other significant studies of clinical co-dependencies;
The programme's Quality and Safety standards meet, and in some cases go further than, the most recent national clinical guidance;
That detailed work needs to take place (particularly workforce modelling and capacity planning in all specialties) and significant consideration given to the Interventional Radiology model as a cross-cutting service once the programme progresses past the agreement on the Single Service model."
"Within the Southern Sector Partnership there is consensus on the following:
That for the benefit of residents, the full range of low and high risk general surgery services must be retained in the Southern Sector. In Healthier Together terminology that there must be a "Specialist" Hospital in the Southern Sector.
There is a jointly agreed clinical description of a future service model which could be implemented.
The achievement of the "Healthier Together" clinical standards, and the capacity implications, appear to be manageable at both locations and, based on the clinical work and activity modelling, the "specialist" hospital could be sited at either Stockport Foundation or UHSM Foundation Trust."
"For general surgery, the intention would be to establish a single shared service for emergency and complex elective general surgery delivered jointly across CMFT and UHSM, recognising the importance of general surgery in supporting the extensive range of tertiary services provided by both Trusts."
"We firmly believe that Wythenshawe Hospital should be the fourth Healthier Together specialist hospital in Greater Manchester and continue to receive all emergency acute surgery patients. Wythenshawe hospital has a strong general surgery service, a unique portfolio of tertiary services, major investments in facilities and infrastructure and excellent access to the hospital which make it a strong choice for patients in Manchester and the Southern Sector, as well as across Greater Manchester and, indeed, the North West."
In an Appendix attached to the letter the 1st IP emphasised the potential impact on the specialised services set out above were it to be made a General rather than a Specialist Hospital in the reorganisation.
"We wish to clarify, on behalf of the Board and our clinicians, the Trust's ambition to be a Healthier Together specialist hospital. This is clearly different to the position set out in the update we provided with CMFT dated 10th June 2015, which this update supercedes.
UHSM's position is that we firmly believe that Wythenshawe Hospital should be the fourth Healthier Together specialist hospital in Greater Manchester and continue to receive all emergency acute surgery patients…
If commissioners designate Wythenshawe Hospital as a Specialist Hospital, UHSM would be an emergency receiving site and could not be in a Healthier Together single service with CMFT. As a Specialist Hospital, UHSM would expect to work in a single service with one or more of the other Southern Sector Trusts, as described in the Southern Sector proposal which was previously submitted.
If commissioners choose not to designate UHSM as a Specialist Hospital, our preference would be to work with CMFT to implement a single service model. As justified below, Wythenshawe Hospital would need additional general surgery support above that provided by the Healthier Together local hospital model in order to maintain the quality of our secondary and tertiary services. Wythenshawe Hospital would need to be more than a "local hospital" within the Healthier Together model."
"In relation to the independent report from the North of England Senate regarding the clinical co-dependencies, there was no significant impact for decision making described."
"Looking in more detail from the evidence we have seen today and the extensive work that has been done up until now, it is absolutely clear, from my point of view that the 4.4 group is certainly the only group that satisfies all parts of the transport requirements and within that group I have made consideration of the finances and also the provider configurations and so my decision when we take that vote shortly will be based on those particular aspects."
Dr Bishop, representing the eighth defendant, observed as follows:
"The only criteria that allows in my mind material difference between any of the options is travel and access and as such the only configuration which achieves the standards is a 4.4 with Stepping Hill Stockport as a specialist site for general surgery would achieve it. Certainly the 4.3 option would lead to 17,500 people unable to achieve that standard."
Dr Whiting on behalf of the second defendant agreed that the only significant difference between the options was travel and access and that this favoured the selection of Stepping Hill. In a similar fashion Dr Dalton representing the ninth defendant stated:
"As others have said, on balance the only real difference I can see is the travel and access and therefore for me to choose the 4.4 options is to make sure the 17,000 people of High Peak are suitably cared for."
Dr Burns for the third defendant contended:
"Today it has become very clear that the key piece of evidence, as others have mentioned is the accessibility and we cannot make a decision today that will deny access to a portion of the population that Greater Manchester serves and we do not have to make that decision, so my decision today is based on the criteria and standards on which we have consulted…"
Dr Dow speaking for the fifth defendant stated:
"I was reminded of the clinical beginnings of the programme which was to reduce variation and in that regard and in the humanity of the situation I feel we have to consider those who are outside Greater Manchester in considering the humanitarian situation and actually taking the impact of the changes into account, particularly that of the people that will be most affected in the High Peak. Stepping Hill Hospital working to the Greater Manchester Healthier Together Standards could be a key piece of the jigsaw in reducing clinical variation both within and beyond Greater Manchester."
"So, the main criteria over which decisions will be made. I will particularly focus on those and whether the information clearly differentiates between the options as described by colleagues in the last few minutes. In terms of quality and safety, we expect standards of care that will be the best in the country and that none of our hospitals currently meet in total. In terms of transition we have considered issues of workforce, time to deliver and independent advice on co-dependencies. Our hospital providers have made clear that we will implement the changes best by focussing the new single services on the North West part of Greater Manchester, the North East part of Greater Manchester, the Central South part of Greater Manchester and South East part of Greater Manchester. That configuration will give us four single services of approximately the same population size. In terms of affordability and value for money we know that the configurations in the South of Greater Manchester offer the best value for money for the tax payer in overall financial terms and generally the lowest capital costs. In travel and access we know that the populations of North Derbyshire and East Cheshire who currently use our hospitals will only be able to reach the 45 minute emergency travel standard if they are served by Stepping Hill Hospital in Stockport. So on the basis of the evidence and of what has been said today I propose that we move to a vote on options 4.4A, which identifies Stepping Hill Hospital in Stockport as the fourth site providing high risk general surgery and creates four single services throughout Greater Manchester…"
The law
"14Z2 Public involvement and consultation by clinical commissioning groups
...
(2) The clinical commissioning group must make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways)-
in the planning of the commissioning arrangements by the group,
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, and
in decisions of the group affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact."
"Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R(Osborn) v Parole Board [2014] AC 1115, this court addressed the common law duty of procedural fairness in the determination of the person's legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed JSC in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair. First, that requirement "is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested": para 67. Second, it avoids "the sense of injustice which the person who is the subject of the decision will otherwise feel": para 68. Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not: 'yes or no, should we close this particular care home, this particular school etc?' It was: 'Required as we are, to make a taxation-related scheme for application to all the inhabitants of our borough, should we make one in the terms which we here propose?'"
"This case is not concerned with a situation of that kind. It is concerned with a statutory duty of consultation. Such duties vary greatly depending on the particular provisions in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or holding public meetings; and so on and so forth…"
Having noted that in that case the local authority was discharging an important function in relation to local government finance which affected its residents generally (the case centred on the authority's decision in relation to a revised scheme for council tax benefits) Lord Reed concluded that the purpose of the statutory duty to consult in that case was "to ensure public participation in the local authority's decision-making process". He went on to observe in paragraph 39:
"In order for the consultation to achieve that objective, it must fulfil certain minimum requirements. Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority's adoption of the draft scheme."
He concluded that in the particular circumstances of that case the second of the Sedley criteria (the provision of adequate and appropriate information) had been breached.
"We agree with Lord Reed JSC that the court must have regard to the statutory context and that, as he puts it, in the particular statutory context the duty of the local authority was to ensure public participation in the decision-making process. It seems to us that in order to do so it must act fairly by taking the specific steps set out by Lord Reed JSC, in para 39. In these circumstances we can we think safely agree with both judgments."
"43 A matter of crucial importance in determining whether the defendants in this case should have re-consulted on the proposals under challenge was the nature and extent of the difference between what was consulted on in the consultation paper and the proposal accepted in the March 2002 decision. Clearly, if all the fundamental aspects of the decision under challenge had not been consulted on but ought to have been, that would indicate a breach of the duty to consult, whilst at the other extreme, trivial changes do not require further consideration. In approaching this issue, it is necessary to bear in mind not only the strong obligation of the defendants to consult, but also the dangers and consequences of too readily requiring re-consultation, as those dangers also flow from the underlying concept of fairness, which underpins the duty to consult.
44 As Schiemann J, as he then was, (with whom Lloyd LJ agreed) pointed out in explaining these dangers in R v Shropshire Health Authority ex p Duffus [1990] 1 Med LR 119 at p223:
"A consultation procedure, if it is to be as full and fair as it ought to be, takes considerable time and meanwhile the underlying facts and projections are changing all the time. It is not just a question of an iterative process which can speedily be run through a computer. Each consultation process if it produces any changes has the potential to give rise to an expectation in others, that they will be consulted about any changes. If the courts are to be too liberal in the use of their power of judicial review to compel consultation on any change, there is a danger that the process will prevent any change-either in the sense that the authority will be disinclined to make any change because of the repeated consultation process which this might engender, or in the sense that no decision gets taken because consultation never comes to an end. One must not forget there are those with legitimate expectations that decisions will be taken."
45 So I approach the issue of whether there should have been re-consultation by the defendants in this case, on the proposals now under challenge on the basis that the defendants had a strong obligation to consult with all parts of the community. The concept of fairness should determine whether there is a need to re-consult if the decision-maker wishes to accept a fresh proposal but the courts should not be too liberal in the use of its power of judicial review to compel further consultation on any change. In determining whether there should be further re-consultation, a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the health service. This means that there should only be re-consultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt."
"A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test. It must also be recognised that a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out…In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went 'clearly and radically wrong'."
Subsequently in the case of R(JL and AT Beard) v The Environment Agency [2011] EWHC 939 Sullivan LJ confirmed that the "test is whether the process was so unfair as to be unlawful".
"In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do."
"68 The search for principle surely starts with the theme that is current through the legitimate expectation cases. It may be expressed thus. Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every good reason to articulate the limits of this requirement-to describe what may count as good reason to depart from it-as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.
69 This approach makes no distinction between procedural and substantive expectations. Nor should it. The dichotomy between procedure and substance has nothing to say about the reach of the duty of good administration. Of course there will be cases where the public body in question justifiably concludes that its statutory duty (it will be statutory in nearly every case) requires it to override an expectation of substantive benefit which it has itself generated. So also there will be cases where a procedural benefit may justifiably be overridden. The difference between the two is not a difference of principle. Statutory duty may perhaps more often dictate the frustration of a substantive expectation. Otherwise the question in either case will be whether denial of the expectation is in the circumstances proportionate to a legitimate aim pursued. Proportionality will be judged, as it is generally judged, by the respective force of the competing interests in the case."
"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought to have take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."
Ground 1
"Patients, the public and staff should be engaged throughout the development of proposals from their very early initiation through to implementation. Engagement should seek to build an on-going dialogue with the public, where they have an opportunity to shape and contribute to proposals, in addition to any formal consultation on options."
The document records four key tests which should be used to measure proposed service changes. They are: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base and support for proposals from clinical commissioners. The document identifies some key questions to be addressed in preparing for an assessment against the four tests. Ms Morris drew attention to the following question as being relevant to the claimant's arguments in relation to the Travel and Access criterion:
"12 Have I considered issues of patient access and transport, particularly if the location where services are provided may change? Is a potential increase in travel times for any groups of patients outweighed by the clinical benefits?"
I have taken this good practice guidance into account when assessing the merits of the claimant's arguments in relation to consultation under this and also under subsequent grounds.
"The purpose of the Healthier Together consultation was for commissioners to listen to the views of the public and stakeholders about the proposed changes to primary care, integrated care and the in scope hospital services (A&E, Acute Medicine, and General Surgery). In particular, our opportunity to listen to feedback in relation to options for the configuration of in scope hospital services."
Thus, as is most often the case in circumstances of this sort where public services are being reconfigured, the consultation was an important source of wider opinion on the changes that were proposed. It was not close to being decisive or determinative. It was rather designed, as stated in the consultation literature, to mould and inform the ultimate decisions to be made.
Ground 2
"This feedback suggests that the four criteria themes…are appropriate and recognised by the public and as such the CIC supported their use in decision making. In addition, very few qualitative comments were received requesting that the criteria should be weighted…In the light of the average score for any one criteria being no less than 7 [out of 10] CIC determined not to apply a weighting to the criteria for decision making."
Ground 3
Ground 5
Ground 6
"Thoracic aortic surgery has:…
A high dependency on, and collocation is strongly recommended with:
…
-general surgery"
The claimant contends that it was irrational not to follow this recommendation.
"Developing, explaining and implementing proposals takes time, collective effort and energy. It is not something that single organisations can, or should, do in isolation. The strongest proposals are those developed collaboratively by commissioners, providers, local authorities, patients and the public. This will ensure that proposals are sound and evidence-based, in the best interests of patients, will improve the quality and sustainability of care, and that people affected will be involved and their feedback will be listened to, and acted upon."
By contrast with this guidance the 1st IP contends that the HT proposals were developed by the defendants alone and that, for example, the reports prepared on co-dependencies by Professor Cant's panel and Mr Bibby had no input from the 1st IP.
Conclusions