Legal lessons: securing judicial review of service reconfiguration

In this article, we outline the facts of the case, the NHS duty to consult about reconfigurations, and lessons for future reconfigurations of NHS services.

This case raised a number of novel issues:

1. It was the first time that one NHS body has claimed judicial review against another NHS body. Foundation trusts are independent bodies, so they are not subject to the Secretary of State’s direction in the way that they were as NHS trusts.
2. The Joint Committee of Primary Care Trusts is not itself a corporate body.  While it was named as a defendant, it was necessary also to name a PCT as a representative defendant of all PCTs in England. 
3. Although the duty on NHS bodies is to consult patients and the public, it was not disputed that the RBHT could challenge an alleged breach of the duty. 
4. RBHT challenged the consultation before the JCPCT had made a decision – usually a challenge would be expected after a decision has been made.

A Joint Committee of Primary Care Trusts (JCPCT) was set up as the formal consulting body about PCCS for the NHS in England. On 1 March 2011 it published a consultation document. The central proposal was to reduce the number of PCCS centres from 11 to six or seven configured in one of four options proposed by the JCPCT. 

None of the options included Royal Brompton Hospital, the largest specialist heart and lung centre in the UK and the clinical arm of the national centre for research. Its paediatric service also provides a specialist service for children’s lung disease. 

Royal Brompton and Harefield Foundation Trust (RBHFT) objected to what it saw were defects in the JCPCT’s consultation. It issued proceedings to claim JR as a last resort after the JCPCT refused to resolve its complaints out of court. It did so with the support of patients and their families who were anxious to protect not only its PCCS, but also its cardiology, its respiratory services and its research partner, the National Heart and Lung Institute. 

JR is a method of challenging a public authority’s decision making. There are limited grounds for making a challenge and the legal test is generally regarded as a high threshold one. RBHFT’s grounds were based principally on errors of law, procedure and irrationality. 

Where a claim is successful, the court may quash a decision as it did here, but the court will not substitute its own decision for that of the public body. 

The NHS statutory duty to consult patients and the public was introduced in 2001 and is now Section 242 of the NHS Act 2006. It requires NHS bodies to consult patients when they plan services, proposed service changes and make decisions affecting the operation of services. Here the JCPCT’s proposals would have a profound impact on PCCS and (according to RBHFT) other services as well. 

What was not novel in the case was the judge’s reason for his decision. The JCPCT made a critical procedural error. Nor was this an obscure technical point, because it meant the public being consulted were seriously misled about the merits of the centres.

The JCPCT asked an expert panel to assess the research of each PCCS centre, but the expert panel included no-one qualified in the assessment of medical research.  Had it done so, it would almost certainly have come to an entirely different conclusion. Then the JCPCT presented its findings on research and as a judgement of “quality”.  The result as Mr Justice Owen put it was: “An unfairness being of such magnitude as to lead to the conclusion that the process went radically wrong.” 

There are a number of lessons to be learnt from the case. 

• No statutory consultation is above the law.
• “No decision about me without me” means that those consulted have to be properly informed by the decision-maker.
• It is not just patients who may complain about a consultation – service providers may complain too. 
• A consultation may involve complex technical issues such as the assessment of research, requiring appropriate technical expertise.

This case does not mean that sensible reconfigurations of NHS services will be more difficult to achieve. But it does remind us that NHS bodies need to work hard to get them right.

The NHS owes it to patients and their families to avoid poorly made decisions and to recognise that the bigger the process the more disastrous will be the consequences of error.

The authors are colleagues at Hempsons, health and social care solicitors, who acted for the Royal Brompton.