England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		28th May 1999

LORD JUSTICE SIMON BROWN: This is a renewed application for permission to challenge the decision of the respondent health authority, made on 11th June 1998, to adopt a particular plan known as "option 4" for the reorganisation of its emergency medicine and surgery services in the county of Worcester. Option 4 involves downgrading Kidderminster General Hospital and, in particular, the closure of its Accident and Emergency Department. Like many such proposed closures, it has proved highly controversial and generated much heated debate. As can hardly be over-emphasised, however, this court has nothing whatever to do with the merits of the plan.

The applicants are the Kidderminster and District Community Health Council, one of the three councils whose districts are affected by option 4. Community health councils are very important bodies. Regulation 17 of the National Health Service, England and Wales, The Community Health Councils Regulations 1996 ("the 1996 regulations") provides:

"It shall be the duty of each Council to keep under review the operation of the health service in its district, to make recommendations for the improvement of that service and to advise any relevant Health Authority upon such matters relating to the operation of the health service within its district as the Council thinks fit."

Yet more relevant for present purposes is regulation 18 of the 1996 regulations, which provides:

"(1) Subject to paragraphs (2) and (3) it shall be the duty of each relevant Health Authority to consult a Council on any proposals which the Health Authority may have under consideration for any substantial development of the health service in the Council's districts and on any proposals to make any substantial variation in the provision of such service."

The following provision I cite purely so that when we come to the decision in R v The North and East Devon Health Authority ex parte Pow [1998] 1 CCLR 280 it can be properly understood:

"(3) Paragraph (1) shall not apply to any proposal on which the Health Authority is satisfied that, in the interest of the health service, a decision has to be taken without allowing time for consultation. . ."

To continue:

"5. In any case where a Council is not satisfied that sufficient time has been allowed under paragraph (4), or that consultation on any proposal referred to in paragraph (1) has been adequate, the Council shall notify the Secretary of State in writing who may require the Health Authority to carry out such further consultation with the Council as he considers appropriate."

It is the applicants' central contention on this application that the respondents failed in their regulation 18(1) duty to consult.

There can be no doubt that, prior to its adoption, option 4 was a proposal which the respondents had under consideration for the making of a substantial variation in the provision of health services in the applicants' district; but nor can there be any doubt that the applicants were consulted about it. Their complaint is rather different. In the period leading up to 13th February 1998, when the respondents resolved to proceed to consultation only on option 4, there had been six other options also under consideration. These came to be described in the published consultation document as "other proposals we have considered". Mr Gordon QC's essential contentions seem to me on analysis to be two-fold. First, he says that there was a regulation 18 duty to have consulted the applicants about these other options too (contention A); secondly, that for want of such consultation about the earlier proposals there was no proper consultation about option 4 - rather, that the respondents' mind was already made up with regard to it (contention B).

This application was initially refused on the documents by Collins J in these terms:

"In order to trigger the duty to consult, the proposal must be one which the HA has in mind to adopt. To construe the regulations otherwise would create a duty to consult whenever a relevant proposal was put forward to the HA for its consideration and that is a nonsense. There is no arguable case that the [HA's] mind was closed."

It was then the subject of a very full inter partes hearing before Turner J, each side being represented, as they have been before us, by distinguished leading counsel. Some weeks later, on 18th January 1999, Turner J gave a comprehensive reserved judgment. He stated his conclusion on the main argument at pages 22 to 24 of the judgment as follows:

"With regard to the substantive point, I entertain no doubt that the construction put on Regulation 18(1) by the respondent, as foreshadowed by the terms in which Collins J refused leave on the paper application was entirely correct. If all seven options had been put before the consultees, the question would then arise whether any one of them even amounted to a proposal. It was not unlawful for the respondents to have indicated at the stage of consultation that they did have a proposal, indeed it would not have been a consultation within the Regulation unless they did have a proposal. There is nothing inconsistent with the obligation of the respondent to consult for it to have given a 'steer' to the consultees by promoting a preferred option. Of course it might have been the case, that having carried out its preliminary evaluation of the options, the respondent had not been able to select one rather than any other. In such a case it would have been proper for them to have consulted on two or more of them. Even the previous history, as outlined above, which shows the processes carried out before the decision taken in February, demonstrates that at all times the respondents were seeking to obtain a wide and authoritative spread of views from its consultees, including the applicants, before it crystallised the proposal on which it decided to consult. In my judgment this shows the formative stage still to have been continuing at that time. The consultation document did not exclude the consideration of other options, it merely indicated that option 4 was preferred, and provided reasons why that was so."

Turner J also, and independently, rejected the application on the ground of delay. The real challenge, he held, was to the decision of 13th February 1998 to consult on option 4 alone. That he described as "the core decision" from which "all else flowed". By as early as 26th February 1998 one notes that the applicants were already writing forewarning of a legal challenge to the decision to go out to formal consultation only on option 4. In reaching his decision on this point, Turner J relied in particular upon Owen J's judgment in R v Cardiff City Council ex parte Gooding Investments [1996] Env LR 288, and Laws J's decision in R v Secretary of State for Trade and Industry ex parte Greenpeace Ltd [1998] Env LR 415. He found that the applicants had "stood by" after the consultation decision had been taken. They had offended against what Laws J described at page 424 as the "common principle" exemplified by a line of authority consisting of Eurotunnel [1995] CLC 392, Gooding (as above) and Adams [1994] Env LR 442, that principle being:

". . that a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If, after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late."

Mr Gordon sought to escape the impact of those cases by submitting that the result of the consultation exercise here might have made an application for judicial review unnecessary. It was always open to the respondents, he submits, as a result of the representations made during the consultation process to withdraw option 4 and reconsult. Let it for present purposes be assumed that this is a sufficient basis to distinguish the present case from the Greenpeace line of authorities. Its necessary corollary is that the respondents' mind cannot be said to have been already made up. Turner J put it thus:

"That argument [that option 4 might have been discarded after representations made during the consultation process] sows the seeds of its own destruction because the thrust of the applicants' case was that, by consulting on option 4 alone, the respondent had pre-empted any other result than the adoption of that option by formal resolution in due course".

That comment is perhaps open to the criticism that it overlooks contention A but, in so far as the judge was pointing out that the applicants' response to the delay point was inconsistent with contention B, I agree with it. The applicants cannot - and, as I understand it, essentially do not - assert that the respondents were already intent upon adopting option 4 when they put it out to consultation. They accept, rather, that the respondents might have been persuaded to abandon it, despite there having been no specific consultation about the other six options. That, to my mind, is hardly a surprising concession. Rather it appears to me to accord with what O'Connor LJ said in Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435 at 456 (where, in effect, he found it permissible for an authority to have a preferred option) and what Woolf J said in R v Hillingdon Health Authority ex parte Goodwin [1984] ICR 800 at page 809:

"Whenever there has to be consultation, there has to be an indication of what there is to be consultation about; and, although an authority must enter into the consultation without a closed mind, it seems to me that there is nothing objectionable in the authority having decided on a course it would seek to adopt, if after consultation it decided that that is the proper course to adopt."

Let me then, in the light of this necessary concession, examine contention A, the argument that the respondents were under a duty to have consulted formally with respect to the other six options. The difficulties of such a contention seem to me various and insuperable. The first point to make is that the applicants were, as stated, consulted about option 4. There was nothing whatever to have prevented them, within that consultation process, from having made representations against option 4 and in favour of other options; in particular their preferred option, option 7, which had been added to the initial six in January 1998. Mr Gordon seeks to overcome this difficulty by reference to the following paragraph at page 23 of the consultation document:

"We did not start this exercise with pre-conceived ideas about what would or would not work. We have been, and remain, open to constructive ideas and suggestions which meet the agreed essential criteria. In this consultation document we are putting forward a clear proposal for people to comment on. We are also setting out below some of the other proposals which have been seriously considered but which we do not feel we can recommend."

This seems to me to damage rather than advance the applicants' argument. Mr Gordon says, however, that his clients did not know what were "the agreed essential criteria". Why then did they not ask? The applicant is the only one of the three community health councils in the respondents' area who opposed this proposal, yet they put forward no alternative to option 4.

The next difficulty in the applicants' path is that, as at 13th February 1998 (when the decision was taken to consult on option 4 alone) the respondents had decided not to support any of the other six options - options, I may say, which had been developed over previous months in the course of a strategic review in which the individual members of the applicant council had been closely involved. It follows that, as at 13th February, there can have been no possible duty on the respondents to consult with regard to them. Regulation 18(1) imposes the duty with regard only to "proposals which the Health Authority may have under consideration." I emphasise the words "may have". They are not - and this is hardly surprising - "may have had". Mr Gordon's response to this is, as necessarily it must be, that the respondents should have consulted with regard to the other six options earlier, whilst they were being developed and considered and prior to their eventually being appraised and abandoned. But why? If, as is clearly established (and is, in any event, only plain common sense) an authority can go out to consultation upon its preferred option, per O'Connor LJ, or with regard to "a course it would seek to adopt if after consultation it had decided that that is the proper course to adopt" per Woolf J, then it seems to me plain that it can chose not to consult upon the less preferred options. It does not, in other words, have to consult on all possible options merely because at some point they were developed, crystallised, canvassed and considered.

It is at this point necessary to say a word about ex parte Pow, the authority upon which so much of Mr Gordon's argument must ultimately hang. Pow was a case in which the health authority had taken their decision without consultation and sought to rely on regulation 18(3), arguing that the "decision ha[d] to be taken without allowing time for consultation." In rejecting that argument, Moses J at page 290 said this:

"As Professor Joad might have said, it all depends what one means by proposal. The answer, in my judgment, is to be found in the Regulation itself. The proposal of a substantial variation, which the Regulation contemplates, is a proposal of such particularity that it can be identified as a substantial variation. It must also be crystallised to the extent that it is capable of consideration by the Health Authority. But since it is the trigger for consultation, it need not, indeed must not, be the subject of any final resolution. If it was, it would undermine the purpose of Regulation 18(1) which is to provide for consultation."

Then, a little further down the page:

"In my judgment, a proposal to close Lynton and Winsford's health services temporarily was of sufficient cogency by 9th April 1997 as to trigger the duty to consult with the Community Health Council. It is true that at that stage the proposal included other possibilities for savings, such as the closure at Torrington, but in my view that does not mean it was not capable of forming the subject of the consultation with the Community Health Council. After all, they might well have wished to debate the merits of those other possibilities as alternatives to the closure of Lynton and Winsford".

And then a little further down the page still:

"It is true that the proposal had not been considered by the Board, but that does not mean that it was not under consideration by the Health Authority. The trigger to Regulation 18(1) is not confined to decisions as to solutions by the Board of the Health Authority."

In reliance on Moses J's judgment, Mr Gordon submits that the six proposals identified by the respondents' strategic review paper of October 1997 were, to use the words of Moses J, "of sufficient cogency . . . as to trigger the duty to consult with the Community Health Council." I disagree. Rather I have no doubt that the only proposals which trigger a duty to consult are those which, or one of which, the health authority is minded to adopt. Pow is no authority for saying that if, as here, a number of options have been worked on, there must thereupon be consultation upon them all lest the health authority start deselecting them. It is one thing to say, as Moses J did, that the mere fact that other possibilities are under consideration (the merits of which indeed, as he observed, the CHC "might have wished to debate",) did not preclude the preferred option being of sufficient cogency to trigger the duty; quite another to say that all such possibilities must themselves then formally be made the subject of consultation. He did not, be it noted, say that of the possibility of closing Torrington. Had he done so, in my judgment he would have been wrong.

The critical difference between that case and this is that there the health authority sought, impermissibly as was held, to regard what became the adopted plan as not previously ever having constituted a proposal which they were minded to adopt. Here, the health authority, to my mind entirely permissibly, never became minded to adopt any of the proposals save only that option 4 which, in the event, was put out to consultation.

I add little more. It is conventional in these cases to set out the facts in substantially greater detail than I have chosen to do. Frankly, no purpose would be served by such an exercise. They have been put before us in considerable, perhaps excessive, detail in the voluminous papers. They were in any event summarised in the judgment below. All that it is really necessary to know is that the health authority initially developed and had before them seven options. These they narrowed down to a single preferred option and then consulted solely upon this.

One final matter which I have not yet mentioned, although my recital of regulation 18(5) foreshadows it, is that on 23rd June 1998, shortly after the decision sought to be impugned, the applicants wrote to the Secretary of State complaining about the lack of consultation. The Secretary of State's reply did not come until 2nd December 1998, over four months after the judicial review application was made. By that reply the Secretary of State rejected the applicants' objections and upheld the respondents' decision, albeit with certain modifications. We did not call upon Mr Goudie QC to address us. I note, however, his written argument that it is now the Secretary of State's decision, rather than that of the respondents, which falls to be challenged. For my part, I would doubt that. Certainly it is not on that ground, nor even on the ground of delay, that I would refuse his application. I would do so rather because to my mind there is no substance in the applicants' central complaint that the respondents failed to discharge their duty under regulation 18(1). The argument built upon Pow is in my judgment unsustainable. I would refuse this renewed application.

LORD JUSTICE AULD: I agree with what my Lord has said and would add only a few words. Regulation 18(1) of the Community Health Councils Regulations 1996 requires a health authority to consult a community health council on any proposals specified in the subsection which it "may have under consideration". It may have under consideration one or more such proposals. In any case, an invitation for views on what is proposed necessarily includes views for and against and, if against, at the very least prompts or enables the suggestion of alternatives.

Here the authority, in its February 1998 consultation paper, indicated that, having considered no less than seven options, it had selected one of them as its preferred option as a proposal for consultation. Having reached the stage of retaining just one proposal under consideration, albeit in a formative state, the authority was entitled to proceed to consultation, as it did, within the terms of regulation 18(1). That provision did not require it to give focus to proposals which it no longer had under consideration. In any event, the process of consultation did not, and designedly could not, preclude outright opposition to the one proposed, which opposition might prompt the authority to reconsider it and/or any of its discarded six options and/or to consider any new ones.

The alternatives for the authority were do nothing or do something else. Any well-advised community health council should have appreciated that and taken the opportunity to advance its case to the full in the consultation process. It was open to this council to match any alternative proposals which it may have had to the criteria identified by the authority in its consultation document, putting such weighting to any of the criteria that it considered appropriate.

If all that were not sufficiently clear from the consultation process itself, the authority's letter to the community health council of 3rd March 1998 made it so. It included the following passages:

"Only following a full report on the clinical review process, the financial implications and the outcome of the Option Appraisal was a 'preferred option' decided upon by the Health Authority at its public meeting on 13 February 1998. It was reasonable for the Health Authority to do this given the option most closely met its clinical concerns and the need for costs reductions. In no way does this signify that it has closed its mind to any other alternatives or modifications to its preferred option so far as these might become apparent during the further consultation period."

In a further passage in the letter it stated:

"Clearly, the Health Authority has and will continue to have regard to all relevant information and considerations before it reaches any decisions as regards the implementation of any proposal within the consultation document."

Despite that clear indication by the authority of its readiness to consider any suggested alternatives to its preferred option by the community health council, that body, in its detailed response to the authority's consultation document, advanced none. In the circumstances I can see no arguable basis for the applicant's complaint of illegality. For that and the other reasons given by my Lord, I too would refuse the application.

LORD JUSTICE THORPE: I agree with my Lords.

ORDER: Application refused with costs