[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
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: http://www.bailii.org/ew/cases/EWHC/Admin/2018/2080.html Cite as: [2018] EWHC 2080 (Admin) |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
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
- - - - - - - - - - - - - - - - - - - - -
Between:
THE QUEEN (ON THE APPLICATION OF LYN BUCKINGHAM) |
Claimant | |
- and – | ||
NHS CORBY CLINICAL COMMISSIONING GROUP |
Defendant | |
-and- | ||
LAKESIDE+ LIMITED |
Interested Party |
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
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
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
HH JUDGE JARMAN QC:
5. Each of these grounds is disputed by CCG. First, it is accepted that for some months before the Decision, CCG intended to consult and made public statements to that effect, but those were made at a time when a number of options, including closure, were being considered. Moreover, some of those statements were qualified by reference to assurance or assessment by NHS England (NHSE). The idea of the Hub re-emerged at a public workshop in December 2017 and the view was taken that the health services to be offered were not significantly different from those already offered at the Centre. CCG has a raft of statutory duties which it must comply with, including a duty to exercise its functions effectively, efficiently and economically. Both NHSE and the Chair of the Overview and Scrutiny Committee (HOSC) of the local authority were content that the proposed consultation was no longer necessary. Even if there were unqualified statements that there would be consultation, there was good reason why this was not done. Second, on the facts there was sufficient involvement with the public, in particular at the public workshop in December 2017 and at the public meeting on 30 January 2108 where Mrs Buckingham amongst others were present and took part in a questions and answer sessions before the Decision was taken. Third, an Equality Impact Assessment (EIA) was carried out by CCG which was adequate in the circumstances.
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.
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.”
12. The CCG Governing Body adopted the Framework at the meeting. It envisaged a second pre-consultation phase from September to October and then the public consultation as set out above. At this stage, closure of the Centre was still an option. Just under 40 engagement events were held at various venues. In October two workshops were organised attended by 5 and 19 people respectively. In the former, there was unanimous support for change, and recognition for improved need for ease of navigation. In the latter there was strong support for the Centre, but recognition that it was misused. The CCG website was updated to include the case for change, the public hand-outs, and dates and venues where the public could engage with CCG.
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.”
17. The final event in the pre-consultation phase was a public workshop held on 14 December 2018 attended by 13 people including 3 representatives of CCG and Arch. Shortly beforehand, CCG issue a press release giving details of the workshop and which continued:
“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”
“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.”
“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.”
25. The guidance referred to is statutory guidance issued by NHSE in October 2015 entitled “Planning, assurance and delivering change for patients.” That provides that there must be clear and early confidence that a proposal for service change satisfies governmental tests including strong public and patient engagement. An external assurance process by NHSE is set out to give confidence to patients, staff and the public that proposals are well thought through, have taken on board their views and will deliver real benefits.
26. In relation to HOSC, the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 require NHS bodies to consult with local authorities on any proposal for a substantial variation or development of service in the locality.
“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”
29. By email on 22 January Caron Williams sought the “initial” views of the Chair of HOSC. She set out a summary of the background and concluded by saying that CCG felt that they had and would continue to discharge its statutory duties and asked whether he concurred. It was stated that the timeline was challenging in that papers for the CCG Governing Body meeting would have to be published on the next day. The background included the following passages:
“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.
35. Both the documents were approved. On the 6 March 2018 CCG presented its case at a full meeting of HOSC, which confirmed the view that rather than statutory consultation, CCG should continue with public engagement, with the focus being on shaping proposals for means of access at the front door. This was confirmed in these terms by Carole Dehghani in a letter dated 9 March 2018 to NHSE. She concluded:
“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].
42. The next question is whether the failure to consult was justified by an overriding legal duty owed by CCG or some other countervailing public interest such as national security. It can readily be accepted that the reasons given at the 30 January meeting, that the CCG had a focused plan influenced by public opinion which did not substantially materially alter the model of care, might justify a very much more simplified consultation exercise then that envisaged when there were a number of potential options including the closure of the Centre.
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.
44. Ms Morris, whilst not accepting that there needed to be shown a change of circumstance to justify a failure to consult, relied also upon the views taken by NHSE and HOSC regarding consultation as such justification. The former could have directed CCG under section 14Z21 of the 2006 Act to discharge its functions in such manner as may be specified, including a direction to consult on the proposal. It did not do so. In my judgment, these views do not amount to the sort of overriding duty or public interest contemplated in the authorities as summarised in Niazi.
46. In respect of HOSC, the request for its view was made the day before documentation had to be published for the CCG Governing Body meeting and only the Chair was consulted at that stage. His view that there had been a long and in depth public consultation was in my judgment clearly not justified on the facts as CCG knew them to be. There had been no consultation on any proposal. What there had been was public engagement to shape the proposals on which to consult.
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.”
52. Nevertheless, there must be involvement in the consideration of the proposal. Ms Morris relied on the December 2017 workshop and the 30 January 2018 meeting. In my judgment the former did not involve consideration of the proposal. The stated purpose of the workshop was to develop proposals on which to consult. As for the meeting, this was a meeting in public rather than a public meeting. The limited opportunity to put questions (rather to provide information or to give views) and the absence of any opportunity to respond to the response did not, in my judgment, amount to the involvement contemplated by the subsection. It follows from that conclusion that CCG were in breach of its duty thereunder.
53. Section 149(1) of the 2010 Act contains what is known as termed the public-sector equality duty which requires a pubic authority, in the exercise of its functions, to have due regard to the need to:
“(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.
61. Indeed, that was the conclusion in respect of each of the protected characteristics. The only risk identified was that barriers may be perceived by patients for Gypsy Roma and Traveller Communities and other BME communities. It was stated that further engagement would be carried out with communities to ensure that they are fully aware of the proposed changes and that they have “the opportunity to express their views.” Although the EIA is a detailed document it also stated:
“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.”
62. In the outline business case put to NHSE, the CCG acknowledged that there was a need to assess the full impact of the proposed changes on such communities and said that it would ensure this took place in the consultation process so that views on proposed changes “can be appropriately captured.”
67. Mr Lock QC made very detailed written submissions in support of Lakeside’s additional grounds, which he expanded upon succinctly and clearly in oral submissions.
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.
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.
75. Ultimately, I am not persuaded that there was such an uncontentious and objectively verifiable error of fact in this regard which renders the Decision unlawful on public law grounds. However, I shall say more about this when dealing with relief.
77. It is important in my judgment to emphasise that CCG was expressly referring to the model of care and not to other aspects. Again, Ms Morris submitted that CCG was entitled to come to that conclusion and NHSE did not disagree or direct consultation which would have been appropriate if there would be a significant change in the model of care. Again, I am not persuaded that there was an uncontentious and objectively verifiable error of fact in this regard.
79. Ms Morris did not dispute that the conflict identified by Mr Lock existed and submitted that such conflicts are inherent in the system. Rather, she submitted that the conflict was dealt with appropriately. At the outset of the meeting of 30 January 2018 the member for governance noted the conflict of interest of all GPs and stated that they would not be involved in procurement decisions and would not participate in conversations where there was a direct conflict which could give them advantage in financial terms. 4 out of the 5 GPs present declared an interest including their practices.
83. The second is that requiring consultation now could mean that any decision will not be implemented in time to replace the current arrangements when they expire at the end of March 2019, and this would have adverse financial consequence for the public purse. The evidence produced by CCG suggests that it could be the case that the whole process will take more than the time available before then. In my judgment that risk should not be discounted. On the evidence, however it is low. The proposal was formulated in a matter of weeks after the December 2017 workshop. Although the outline business case and consultation plan were rejected by NHSE, advice was given as to what was needed. The engagement process which followed the Decision is likely further to have refined the issues and developed the details of the proposal. Given that there is only one proposal on which to consult which does not involve closure, in my judgment it is likely that this can be achieved in time, and the risk that it may not is not disproportionate to the public interest in good administration.
84. The third reason which Ms Morris advances for not granting relief is that consultation is unlikely to make any material or significant difference. That is a possibility, but in view in particular of the proposed removal of the walk-in facility and of face to face triage by doctors and nurses, it cannot in my judgment be said to be a likelihood.