IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE COLLINS)
B e f o r e :
LORD JUSTICE KEENE
|NORTH EAST DERBYSHIRE PRIMARY CARE TRUST||Defendant/Respondent|
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MR ANDREW POST (instructed by Beachcroft Wansborough, Park Square, Leeds) appeared on behalf of the Respondent
MR JAVAN HERBERG appeared on behalf of the Secretary of State
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"It is the duty of every body to which this section applies to make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on -
(a) the planning of the provision of those services, (b) the development and consideration of proposals for changes in the way those services are provided, and
(c) decisions to be made by that body affecting the operation of those services."
The section applies to Primary Care Trusts - see section 11(2).
"There was an alternative remedy. Judicial review is always regarded as a last resort. I am, I am afraid, unimpressed by the contention that the claimant and, presumably, those advising her were unaware of the existence of the Patients' Forum. No attempt has been made to seek to persuade it to intervene. Ms Grey suggests that that remedy would have taken a great deal of time to pursue. If the Patients' Forum had taken the matter up on the claimant's behalf, I find it difficult to believe that the PCT would have gone ahead regardless. But, if it did or if the Forum did not accept that s.11 was in play, the remedy of judicial review could then have been pursued. I think that there is force in Mr Herberg's submission that the claimant should have tried in that way to avoid judicial review.
I have to ask myself whether, notwithstanding the failure to comply with s.11, relief should be granted. I very much doubt whether, if the PCT had received and considered the claimant's views, it would have reached a different decision. There is no reason why UHE should not provide the sort of service the claimant wants and these proceedings should at least have alerted the PCT to the need to ensure that the contractual terms are such as to achieve what is wanted. These considerations coupled with the existence of an alternative remedy which could have avoided these proceedings persuade me that it would not be appropriate to grant any relief."
So, the judge gave two reasons: there was an alternative remedy and representations by the claimant would probably have made no difference. I do not agree with submissions in writing by Mr Pittaway QC on behalf of the PCT that the judge's primary reason for the refusal of relief was the existence of an alternative remedy. If anything I read the weight of his decision as being the other way round and I note that Mr Pittaway made a proper concession, which Mr Post accepted also in his oral submissions today, that the judge's conclusion that consultation would probably have made no difference would have been inadequate if it had stood alone to justify refusing relief. It is also significant that it was not the claimant alone whom the PCT should have consulted.
"Patients' Forums, created under section 15 of the National Health Service Reform and Health Care Professions Act 2002 ... have (by section 15(3)) wide ranging duties to monitor and review, to obtain the views of patients and others on, and to make reports and recommendations on, services (and associated arrangements) provided by the PCT.
They also have specific functions to promote public involvement in consultations and decision making by PCTs (section 16(3)(a)), and in particular to advise PCTs as to how to encourage such involvement, including how and when to carry out section 11 consultations in their area: section 16(3)(c). They also have the function of monitoring how successfully PCTs have carried out such consultations: section 16(3)(d).
Where a Patients' Forum is concerned that the section 11 involvement/consultation duty may not have been complied with, there are a number of avenues open to it:
(i) It may require the PCT to produce information to it (subject to certain exclusions) relating to the possible failure: Reg 5 of the Patients' Forum (Functions) Regulations 2003, and make reports and recommendations to the PCT in respect of the failure of consultation (s.15(3)(c) of the 2002 Act;
(ii) It may refer its concerns, if not satisfied, to the relevant Overview and Scrutiny Committee ("OSC"): section 15(5)(a);
(iii) Specifically, if it has concerns that a PCT is not 'carrying out' its section 11 duty of consultation/involvement or is not doing so in a 'satisfactory manner', it may refer the matter to the relevant OSC, provided that it has first made 'all reasonable efforts to resolve the matter with the ... PCT ... and it considers that those efforts have failed': Regs 7(1) and (2) of the Functions Regulations;
(iv) The OSC has wide ranging powers to review and scrutinise the PCT, including the PCT's compliance with its section 11 duty: to obtain information, require an officer to the PCT to appear before it, and to make recommendations; see section 7(1) of the 2001 Act, and the Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002, Regs 2, 3 and 6;
(v) Finally, a Patients' Forum may refer its concerns to any other body as it thinks fit (section 15(6) of the 2002 Act), which would include a reference to a Strategic Health Authority ("SHA"), which is the performance manager of the PCT. A SHA has power to direct a PCT about the exercise of any of its functions: section 17B of the National Health Service Act 1977."
Mr Herberg submits that recourse to the Patients' Forum is highly desirable at a number of stages of considerations such as this and he and Mr Post support the judge's earlier conclusion that the PCT could easily have discharged its section 11 duty by informing the Patients' Forum. It would then be for the Patients' Forum to see whether any wider consultation or involvement was desirable.