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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A & Anor, R (On the Application Of) v South Kent Coastal CCG & Ors [2020] EWHC 372 (Admin) (21 February 2020) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2020/372.html Cite as: [2020] Med LR 181, [2020] EWHC 372 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE QUEEN ON APPLICATION OF A |
First Claimant |
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-and- |
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THE QUEEN ON APPLICATION OF MARION KEPPEL |
Second Claimant |
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- and – |
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(1) SOUTH KENT COASTAL CCG (2) WEST KENT CCG (3) MEDWAY CCG (4) BEXLEY CCG (5) CANTERBURY COASTAL CCG (6) SWALE CCG (7) ASHFORD CCG (8) DARTFORD GRAVESHAM & SWANLEY CCG (9) THANET CCG (10) HIGH WEALD LEWES HAVENS CCG |
Defendants |
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(1) KENT COUNTY COUNCIL (2) MEDWAY COUNCIL |
Interested Parties |
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Jenni Richards QC & Annabel Lee
(instructed by Irwin Mitchell LLP) for the Second Claimant
Fenella Morris QC & Benjamin Tankel
(instructed by Capsticks) for the Defendant
David Lock QC & James Neill
(instructed by Medway Council) for the Second Interested Party
The first Interested Party did not appear and was not represented
Hearing dates: 3, 4 and 5 December 2019
Written submissions: 30 January 2020
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Crown Copyright ©
MRS JUSTICE FARBEY :
Introduction
Factual background
Social deprivation and risk of stroke
Access to emergency treatment for stroke
i. Seeing a stroke consultant within 24 hours;
ii. Having a brain scan within 1 hour of arriving at a hospital;
iii. Being seen by a stroke-trained nurse and one therapist within 72 hours of admission; and
iv. Being admitted to a dedicated stroke unit.
i. Patients with acute ischaemic stroke, regardless of age or stroke severity, in whom thrombolytic treatment can be started within 3 hours of known onset should be considered for such treatment.
ii. Patients with acute ischaemic stroke under the age of 80 years in whom thrombolytic treatment can be started between 3 and 4.5 hours of known onset should be considered for it.
iii. Patients with acute ischaemic stroke over 80 years in whom thrombolytic treatment can be started between 3 and 4.5 hours of known onset should be considered for it on an individual basis. In doing so, treating clinicians should recognise that the benefits of treatment are smaller than if treated earlier, but that the risks of a worse outcome, including death, will on average not be increased.
i. The time from a 999 call to the ambulance service to bringing a patient to the hospital door should be as short as possible and less than 60 minutes; and
ii. The time from arrival at the hospital door to thrombolysis should be as short as possible and less than 60 minutes.
i. Processes throughout the emergency pathway to minimise delays to treatment, to ensure that thrombolysis is administered as soon as possible after stroke onset;
ii. Staff trained in the delivery of thrombolysis and monitoring for post-thrombolysis complications;
iii. [Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]Specialist nursing staff. A minimum of six thrombolysis-trained staff should be available at any time of day or night;
iv. Immediate access to imaging and re-imaging;
v. Protocols in place for the management of post-thrombolysis complications.
The pre-consultation decision-making process
i. Improved care and outcomes, ensuring that patients will be given the best possible chance of survival and minimising disability from stroke;
ii. Access to 24-hour, 7-day specialist care, regardless of where in Kent and Medway the patient resides;
iii. Sustainable stroke services for all residents;
iv. High performance against national best practice, assisted by a minimum of 500 patients per annum to maintain workforce experience;
v. A specialist workforce; and
vi. Consistency of stroke care for Kent and Medway residents regardless of where they live.
i. Quality of care for all;
ii. Access to care for all;
iii. Workforce;
iv. Ability to deliver; and
v. Affordability and value for money.
Public consultation
" one of the key areas of concern is that no options under consideration include an East Kent hospital, and in particular that Thanet is a long way from any hospitals under consideration."
"Across all strands of the consultation, the desire to maintain services at QEQM and consider the needs of the residents of Thanet has been made clear".
"Residents are particularly concerned East Kent has no HASU option yet has both higher proportions of elderly residents and some of the most deprived areas in the country - both of which are linked to higher incidences of stroke."
Post-consultation decision-making
"As part of the work to shortlist options, …EKHUFT… concluded that it would not be possible to run two Hyper Acute Stroke Units because it would be very difficult to deliver due to recruitment issues and the risks around staff relocation. Of the sites run by the trust, the William Harvey Hospital was identified as the best option for a hyper acute stroke unit. This was because of the existence of other services that are desirable to have located alongside a hyper acute stroke unit."
The decision under challenge
Legal framework
i. It must be undertaken at a time when proposals are still at a formative stage;
ii. The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response;
iii. Adequate time must be given for consideration and response; and
iv. The product of consultation must be conscientiously taken into account in finalising any statutory proposals.
i. A fair consultation "is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested";
ii. It avoids "the sense of injustice which the person who is the subject of the decision will otherwise feel".
"Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options."
"(1) A clinical commissioning group must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility –
(a) hospital accommodation,
(b) …
(c) medical, …nursing and ambulance services,
(d) …
(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the [CCG] considers are appropriate as part of the health service,
(f) such other services or facilities as are required for the diagnosis and treatment of illness."
"(1) Each clinical commissioning group must exercise its functions with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness.
(2) In discharging its duty under subsection (1), a clinical commissioning group must, in particular, act with a view to securing continuous improvement in the outcomes that are achieved from the provision of the services
…".
This duty is owed to everyone (irrespective of personal characteristics).
"Each clinical commissioning group must, in the exercise of its functions, have regard to the need to—
(a) reduce inequalities between patients 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."
"Each [CCG] must, in the exercise of its functions, act with a view to enabling patients to make choices with respect to aspects of health services provided to them."
"(1) This section applies in relation to any health services which are, or are to be, provided pursuant to arrangements made by a clinical commissioning group in the exercise of its functions ("commissioning arrangements").
(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)—
(a) in the planning of the commissioning arrangements by the group,
(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, and
(c) 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.
…"
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or 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.
…
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
…"
The grounds for judicial review
Ground 1: The defendants misunderstood or failed to discharge the health inequality duty under section 14T of the Act. The defendants' decision to close the QEQM stroke unit means that the most deprived areas to the east of Kent including Thanet will experience an increase in travel times to hospital by ambulance. Only 81.3% of those from the most deprived quintile of the population will be able to access stroke services within 45 minutes compared to 92.4% of the general population. Of Thanet's population, 17% will not be able to access a HASU in 60 minutes.
Ground 2: The defendants failed to consider and failed to make sufficient inquiries into whether and how stroke prevention measures could mitigate the effects of the decision to remove stroke services from QEQM. The grounds for judicial review contend that: "Given how critical prevention was deemed to be to the decision, it was irrational for the [defendants] to proceed to [a] final decision without adequately considering and making sufficient inquiry into the matter of prevention".
Ground 3: The defendants "failed to make sufficient inquiry into workforce recruitment issues" when deciding that it was not viable to have a HASU at QEQM.
Ground 4: The defendants failed to discharge their duty as to patient choice under section 14V of the 2006 Act.
Ground 5: The defendants' consultation was unlawful. It breached the common law duty of consultation and/or section 14Z2 of the 2006 Act.
Ground 6: The defendants failed to have due regard to the PSED under section 149 of the Equality Act 2010.
Ground 7: The defendants failed to conduct sufficient inquiry into the impact of increased travel times to the reconfigured hospital services before making the decision, in breach of its duty to inform itself of essential information.
Ground 8: The decision was unlawful as the defendants failed to consider its effect on patient flows from outside the Kent and Medway area and/or it was Wednesbury unreasonable to support an option which will support NHS services for patients outside the defendants' area in preference to a configuration which will provide services to patients predominantly within the defendants' own areas.
The interpretation of section 14T(a)
Competing statutory duties
The scope of judicial review
Professor Rudd's evidence
"The evaluation process identified that three was the optimal number of HASUs for Kent and Medway, based primarily on the number of staff needed to run more than three units, and the numbers of patients each unit would see. These two criteria are critical to the quality of high-power acute stroke care (intensive support and care in the critical 72 hours after a stroke). When units do not have round-the-clock, seven day a week expert teams, patient outcomes are likely to suffer. When units do not see the minimum of 500 confirmed strokes (and ideally at least 600) the staff do not hone their skills and build expertise, and patient outcomes suffer".
"There is no evidence to show that the location of hyper acute stroke units improves deprivation or reduces health inequalities…"
"There is no evidence to show that HASUs should be sited in areas of highest incidence or prevalence."
"a. Access: can the population reach the unit within a specified timeframe?
b. Availability of co-dependent and co-adjacent services: does the hospital site have the necessary co-dependent services for a HASU, and how many of the desirable services are also available at the site?
c. Workforce: are the staff available to provide 24/7 care to stroke patients?"
"the 20% or so of patients who need clot busting treatment will receive it within 120 minutes of calling 999".
"important to stress that travel time is just one aspect of stroke care and it is not the critical factor in improving outcomes for patients".
In his view, the most important factor in saving lives and reducing disability is round-the-clock care on fully staffed units. On conventional principles of public law, Professor Rudd's conclusions are unimpeachable.
The grounds of challenge: analysis and conclusions
"It would be, in my view, and based on the current availability of specialist stroke workforce, an impossible task to recruit the additional 14 consultants required to safely staff four HASUs in Kent".
In my judgment, the claimants have failed to raise any arguable point of law on workforce issues. I shall refuse permission to apply for judicial review.
"To ensure the patient, staff and stakeholder voice is represented by engaging identified audiences in the design and implementation of the plans and proposals at each stage".
The purpose of such public involvement was to:
"Help meet statutory duties and best practice guidance".
"We will cover the geography, demography and diversity of Kent and Medway and our boundary populations, including the working population, silent majority, seldom heard, people who are mostly well, and people who aren't, and those with protected characteristics, to gather a fair representation of views and feedback."
"We also made a commitment to ensuring we targeted…the needs of seldom heard groups and others with special requirements. These groups include, for Kent and Medway and in our neighbouring CCG areas, for example: the young, the working well, those in deprived communities, those in more rural communities, …. We also committed to seeking views on the proposals from those representing the nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy race, religion and belief, sex and sexual orientation" (emphasis added).
Summary