England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand, London WC2
		Monday, 31st July 2000

1. MR JUSTICE JACKSON: This judgment is in seven parts: part one, introduction; part two, the facts; part three, the present proceedings; part four, did the respondent fail to take into account relevant considerations at its meeting on 27th January 2000?; part five, was the consultation process unfair?; part six, the alleged misapplication of central government policy; and part seven, conclusion.

PART 1: INTRODUCTION

2. This is an application for judicial review of a decision made by the respondent health authority on 27th January 2000. That decision was in the following terms:

"... that a programme of work should be put in place that would close Orchard Hill as a long stay hospital and, in conjunction with other stakeholders, provide the required range of community-based replacement services for the 119 long stay residents of the site."

3. Orchard Hill is a long stay hospital for persons with learning disabilities. It stands within part of what used to be the grounds of St Mary's Hospital for Children. The applicants are three patients residing at Orchard Hill. The respondent is a health authority which was established on 1st April 1994 as a result of the merger of the Merton and Sutton Health Authority and the Wandsworth Health Authority. The respondent funds the majority of patients resident at Orchard Hill. Where in this judgment the phrase "the health authority" is used, that is a reference to the respondent.
4. Many of the patients at Orchard Hill were, in their childhood, patients at St Mary's Hospital for Children. The Parents Staff Association is a body on which both the hospital staff and the families of those patients are represented. In this judgment I will refer to that association as "the PSA".
5. Between April 1993 and March 1999 Orchard Hill was administered by the Merton and Sutton NHS Trust. Since 1st April 1999 Orchard Hill has been administered by the South West London Community NHS Trust. Although not a party to the litigation, the NHS Trust has a very close interest in the outcome and has provided helpful and informative evidence to this court.
6. Let me now say a word about learning disability. This is a term used to describe a significant impairment of intelligence and social functioning which is acquired during childhood. Such a disability used to be called "mental handicap". Learning disability may be classified as mild, moderate, severe or profound. Persons with learning disabilities may or may not also suffer from mental illness. According to "Signposts For Success", a document published by the NHS in January 1998, estimates of the number of people with learning disabilities who also have mental health problems vary between 5 and 50 per cent. This variation is due to differences in terminology and differing procedures for diagnosis.
7. The residents at Orchard Hill not only have profound learning disabilities, they also suffer from physical handicaps such as lack of mobility, incontinence and eating problems (see page 10 of the respondent's consultation document dated August 1999).
8. In summary, the issues in this litigation revolve around the proper treatment of a minute percentage of the population who are gravely disadvantaged.

PART 2: THE FACTS

9. In 1896 the Metropolitan Asylums Board purchased 136 acres of land at Carshalton in Surrey for the purpose of constructing a fever convalescent hospital. The hospital buildings were completed in 1906, but were no longer required for their original purpose. In those circumstances, the board decided to use the new hospital and its extensive grounds for the reception and treatment of sick children from all over London. The hospital started to receive children in 1909 and it became known as "The Children's Infirmary."
10. In 1915 Queen Mary, the queen consort of King George V, became patron of the Children's Infirmary. The name of the infirmary was then changed to Queen Mary's Hospital for Children. Queen Mary's Hospital treated all manner of child diseases, especially tuberculosis, rheumatic fever and poliomyelitis. The extensive hospital grounds were used for various forms of open air treatment. In 1927 a heated outdoor swimming pool was constructed in which convalescent children could take exercise. It appears from newspaper articles, which have been put in evidence, that the reputation of the hospital steadily grew during the 1920s and 1930s. Queen Mary's Hospital continued to function through the Second World War despite bomb damage.
11. In 1948 the NHS was established. Ownership of Queen Mary's Hospital for Children and its extensive grounds passed to the Secretary of State for Health. Queen Mary's Hospital continued to function as a general children's hospital within the National Health Service. As immunisation programmes became more widespread in the post war years, the incidence of tuberculosis and poliomyelitis diminished. Queen Mary's Hospital took this opportunity to expand its areas of specialisation. In 1959 the Fountain Hospital for Mentally Handicapped Children in Tooting was transferred to the site of Queen Mary's Hospital. The two hospitals amalgamated. In this way Queen Mary's Hospital became the first comprehensive children's hospital in the United Kingdom, treating children with physical illness, children with mental illness and children with learning disabilities.
12. Professor Bicknell, who was a registrar at Queen Mary's Hospital between 1965 and 1971, has made a witness statement for the purpose of these proceedings. She describes Queen Mary's Hospital during the 1960s in the following terms:

"It was considered to be a world leader for provision for ill children. At its maximum the hospital provided 1,000 beds, 500 dedicated to mental handicap and 500 to other conditions such as cerebral palsey, tuberculosis and later spina bifida. I recall that the hospital was the largest children's hospital in Europe and was undoubtedly a centre of excellence. A lot of research was undertaken at the hospital into the causes of mental handicap and in my view has never been bettered in terms of the research facilities it afforded. The provision for the mentally handicapped children and young people was outstanding by current standards, providing wards and then 'houses' with much smaller numbers than had been previously accommodated on wards, with a reasonable staffing ratio and a significant involvement of therapists."

13. Professor Bicknell recalls that when mentally handicapped children reached the age of about 16, they were transferred to St Ebba's Hospital in Epsom. That was the only provision for mentally handicapped adults within the catchment area. St Ebba's had a policy of not discharging patients into the community. The consequence of this policy was that St Ebba's became full and often had no surplus capacity.
14. Professor Bicknell and other witnesses recall that during the 1970s, many young adults could not be transferred from Queen Mary's Hospital to St Ebba's because of lack of beds at St Ebba's. As a result, those young adults stayed on at Queen Mary's Hospital. Within the confines of a children's hospital this obviously caused many practical problems. During the 1970s a plan was developed to make separate provision within the grounds of Queen Mary's Hospital for adults with learning disabilities. This plan would enable children at Queen Mary's Hospital effectively to stay at the same establishment on a long-term basis.
15. In about 1972 P.A., the second applicant, was admitted as a patient to Queen Mary's Hospital. He was then aged about 12. He suffered from profound learning disabilities. He was autistic and psychotic. He had no speech and was hyperactive. Those conditions were permanent. He was destined to spend the rest of his life with a mental age of less than 5. P.'s father, Mr P.A., describes P.'s condition at that time as follows:

"Around this time life at home was exceptionally difficult. It seemed as though P. was tearing the house apart. There were bite marks on the doorframes and bannister rails. He would regularly chew up the curtains in the house. The curtains in his bedroom had to be changed every six weeks. It was very difficult to settle him at nighttime and he would regularly smash a number of windows in the house. I remember replacing the windows with progressively thicker glass. His behaviour was exceptionally destructive."

16. Despite these problems, both Mr and Mrs A. had misgivings about placing their son at Queen Mary's Hospital. They feared that within a few years P. would be transferred from Queen Mary's Hospital to St Ebba's. P. had previously had most unfortunate experiences whilst staying at St Ebba's Hospital for a short period of respite care.
17. Mr and Mrs A. discussed their misgivings with Dr Kirman, the Consultant Psychiatrist at Queen Mary's Hospital. Mr P.A. describes that discussion and its aftermath as follows in his witness statement:

"I recall very clearly that Dr Kirman informed my wife that if P. went to Queen Mary's then he would not go to St Ebba's but would have a home for life at Queen Mary's. It seemed to me that he was obviously seeking to allay my wife's fears in view of the St Ebba's experience. He was also very aware of the stress that my wife was under and her blood pressure problems. We had shared with him the immense feelings of guilt we had in placing P. in a long-term placement.

We did not place P. immediately after that consultation with Dr Kirman but considered matters. We met further with our GP who continued to urge us to place P. at Queen Mary's. Eventually as a result of the immense pressure we were under at home and because of Dr Kirman's promise, we placed P. at Queen Mary's."

18. There has been some debate during the hearing as to whether Mr P.A.'s evidence about this conversation is accurate. Dr Kirman is no longer alive. Nevertheless, Professor Bicknell, who knew Dr Kirman well, has assisted the court on this issue. In her witness statement Professor Bicknell says:

"I have worked with Dr Kirman for hundreds of hours and knew him very well. He was a very committed doctor, dedicating his life to the study and treatment of mental handicap. He was very caring and communicated a benign paternalism to staff and patients alike. I recall that for Dr Kirman Queen Mary's and subsequently Orchard Hill was the zenith of care for mentally handicapped people ...

I believe it highly probable (90 per cent plus probability) that Dr Kirman would have offered P.A. a home for life at Queen Mary's and then Orchard Hill. Such a promise would have been consistent with his views of the type of care required by someone of P.'s disabilities and of the excellent provision available at Queen Mary's."

19. Having assessed the evidence on this issue, I conclude that Mr A.'s recollection is correct. At the time of the second applicant's admission to Queen Mary's Hospital, Dr Kirman gave an assurance to Mr and Mrs A. that their son would have a home for life there. Mr and Mrs A. acted in reliance on that promise.
20. The first applicant, G.P., was admitted to Queen Mary's Hospital at the same time, namely in or about 1972. G. was then aged 8. He was profoundly handicapped, both mentally and physically. Mr M.P., G.'s father, says in his witness statement that G.'s behaviour was exceptionally challenging. It simply was not practicable for Mr and Mrs P. to look after G. at home.
21. During the 1970s the pressure caused by young adults staying on at Queen Mary's Hospital after the age of 16 continued to increase. Plans for the construction of adult residential units within the grounds of Queen Mary's Hospital were finalised. This section of the hospital was to be known as "Orchard Hill". Construction work began in 1981.
22. In 1982 a booklet about Queen Mary's Hospital For Children was published. It dealt both with the past history of the hospital and with its future plans. The booklet was written by M.D. Meyrick. In part 3 of this booklet Mr Meyrick described the new project in the following terms:

"... four of the wards are being converted into Adult Residential Units. Two other wards have already been converted into an Activity Centre which the residents will be able to attend daily. Due to the high cost of conversions, it has been decided that future accommodation will be provided by demolishing existing wards and purpose building Residential Units specifically designed for the mentally handicapped. It is planned that eventually two streets, namely E Street and F Street, will be given over to this type of accommodation. The Residential Units, it is hoped, will become 'homes' rather than 'wards' in a hospital. To this end, this group of homes will become known as 'Orchard Hill' and the streets will become 'Russett Lane' and 'Bramley Lane', and will eventually have a separate entrance (and thus a different address) from the hospital. The nursing staff on those units will become more like house-parents and the domestic staff will also help to train the residents. To achieve a more homely environment none of the staff will have uniforms. It is hoped that with this new approach to the care of the mentally handicapped, the residents can be trained into the community or at least have the level of their standard of living raised. When the project has reached the end of the building stage, there will be about 200 beds in 'Orchard Hill'."

23. On 3rd February 1982, a meeting of the PSA was held. Mr E., a parent, was in the chair. Mrs Thompsett, the Deputy Hospital Administrator, was present. The first item in the minutes of the meeting reads as follows:

"The Chairman confirmed that the residents had a long term home at Queen Mary's and there was no question that they would be moved at the age of 19, unless the parents requested it."

24. Mrs Thompsett is not recorded as demurring from that statement. One of the parents present at the meeting was Mrs P.. In a recent witness statement Mrs P. says that she recalls that meeting. She states that she understood from the meeting that the residents would have a home for life at Orchard Hill.
25. Mr David Holgate QC, on behalf of the respondent, submitted that Mrs P.'s evidence was inconsistent with the minutes. The phrase in the minutes "a long term home" denotes something less permanent than a home for life. Mr Elderfield, who was Hospital Administrator in the 1980s, makes the same point in his second witness statement.
26. I do not agree. Parents of seriously handicapped children are generally concerned about the long-term future, in particular what will happen to their child in the later period when they, the parents, are no longer available to help. It seems to me clear, both from the contemporaneous documents and from the recent witness statements, that Orchard Hill was constructed in 1981 and 1982 in order to provide a permanent home for those young adults who had grown up at Queen Mary's Hospital and had stayed on there. Obviously it was hoped that some of the less handicapped residents would be voluntarily resettled into the community. Obviously some residents would move to other institutions for family or other reasons. But that would be a matter of choice. Subject to these implicit qualifications, the hospital authorities led the families to believe that Orchard Hill would provide for its residents a home for life.
27. Orchard Hill opened and the adult patients moved into their new accommodation in or about late 1982. The precincts of Orchard Hill, which had been carved out of St Mary's Hospital grounds, occupied some 47 acres. Orchard Hill was and is quite unlike the traditional institutions in which persons with learning disabilities or mental illness have been housed. It has been described by several witnesses as a therapeutic campus. There are separate bungalows in which the residents live; spacious and secure grounds in which the residents can wander safely; and a range of medical and dental facilities. There is also a hydrotherapy pool and an experience park.
28. Not all these facilities were present when Orchard Hill was opened in 1982. But the concept was there. During the 1980s and 1990s Orchard Hill was gradually developed along the lines originally envisaged. It continued the tradition of excellence which had been established by Queen Mary's Hospital. The parents of Orchard Hill residents speak highly of the facilities. They also speak highly of the dedicated staff who work there. It is heartening to see from the correspondence bundle that periodic visitors to Orchard Hill, such as physiotherapists and local general practitioners, also speak in glowing terms of the service which Orchard Hill provides to its residents.
29. Orchard Hill has the capacity for some 200 residents. During the 1980s it took in new residents from Queen Mary's Hospital, as they attained adulthood. It also received some new residents from outside. Some of its residents were on a short-term basis. Some of its residents were less severely handicapped and were able to be resettled into the community. However, a large number of the residents had profound learning disabilities. There was no suggestion that these people should be resettled into the community. They lived at Orchard Hill as their permanent home.
30. In 1990 the third applicant, C.H., moved into Orchard Hill. He was aged 31. He had a mental age of 2. He could not talk and was doubly incontinent. He had challenging behaviour. If aggravated in any way he was liable to injure both himself and others. It is a tribute to the staff that people with such profound disabilities could be accommodated at Orchard Hill and given a more pleasant life-style.
31. As events turned out, the third applicant was one of the last new residents at Orchard Hill. In 1990, for reasons which have been not been disclosed, the health authorities responsible for Orchard Hill closed the doors to new long stay residents. In addition to this, plans were made for the closure of Queen Mary's Hospital. Queen Mary's Hospital finally closed in 1993 after 85 years' service to sick children from London.
32. Thus in the early 1990s Orchard Hill found itself in a new situation. First, Orchard Hill was no longer the adjunct of a large children's hospital. It stood by itself, although it retained the 47 acres of land previously acquired from Queen Mary's Hospital. Secondly, Orchard Hill had a declining population. Some residents left for one reason or another and sadly some residents died. There were no longer new residents coming in to fill the vacant places. The decline in numbers can be gleaned from the following figures which I have extracted from the correspondence bundle: in 1990 to 1991 there were 189 residents; in April 1992 there were 169 residents; in November 1998 there were 124 residents; in August 1999 there were 120 residents.
33. Despite the block on taking new residents, the buildings of Orchard Hill did not fall into disrepair during the early 1990s. On the contrary, works of improvement continued. For example, the experience park, which I referred to earlier, was constructed during 1993.
34. In February 1993 the South West Thames Regional Health Authority published a consultation document entitled "Guidance on meeting the needs of people with learning disabilities in the South West Thames Region." This document, as Mr Holgate rightly pointed out, was by no means limited to Orchard Hill. It reviewed the provision which was made throughout much of South London and Surrey.
35. The introduction to this consultation document included the following passage:

"Since the early 1970s, national policy has recognised that people with learning disabilities, even those with severe and profound disabilities, mainly need social care. With social services being identified as the lead agency for planning and arranging the delivery of care for people with learning disabilities. The policy emphasis has been on developing small scale, local services and support in the community, and on resettling people from long-stay institutions into the community. Recent guidance from the Government has re-emphasised this policy direction, stating the principle that people with learning disabilities have the same rights of access to mainstream health services and other mainstream services as everyone else. Appendix 2 provides more details on the policy context.

Under the NHS and Community Care Act 1990, local health and social services authorities are responsible for assessing the health and social care needs, respectively, of their local populations and then purchasing the most appropriate services and support to meet these needs."

36. Mr Richard Gordon QC, representing the applicants, submitted that this is an important passage. It shows that the policy underlying the consultation document has been in existence since the 1970s; Orchard Hill was constructed against the background of that policy. I accept that submission.
37. After that introduction, the consultation paper went on to propose that a number of institutions for the mentally handicapped should be closed and the residents should be resettled within the community. One such institution was St Ebba's Hospital. Another far more controversial proposal was that Orchard Hill should be closed by March of 1997. This latter proposal, unsurprisingly, provoked a flurry of protest. The PSA at Orchard Hill sent in a written response. This response made four important points: one, the promise of a home for life:

"When our sons/daughters were admitted to Queen Mary's it was only due to the fact that WE COULD NOT COPE WITH THEM AT HOME not that WE DID NOT WANT THEM.

We were all given an assurance at that time that they had a well caring Home for the rest of their lives. THIS GAVE THE PARENTS PEACE OF MIND AND RELIEF THAT, AFTER THEIR DAYS, OUR CHILDREN WOULD LIVE IN A WELL PROTECTED ENVIRONMENT, BUT STILL LIVE IN A COMMUNITY ATMOSPHERE."

38. Two, the fact that Orchard Hill had more severely disabled residents than any other establishment or hospital in the region. Three, the physical structure and layout of Orchard Hill, which made it quite different from a traditional institution. Four, excellent facilities were provided on site and were unlikely to be replicated elsewhere.
39. Many other people submitted similar responses to the Regional Health Authority. The Regional Health Authority saw the force of these objections. It withdrew its proposal to close Orchard Hill, but made it clear that the number of residents was expected to reduce. This expectation was perfectly sensible for the reasons which I have mentioned earlier.
40. On 5th May 1993 the Regional Health Authority wrote to Mr Nigel Forman MP, in whose constituency Orchard Hill lay. In that letter the Regional Manager of the RHA wrote as follows:

"I am sorry that our consultation document has stirred up such a hornet's nest. It was intended to provoke discussion on the key issue of how government policy on care in the community and the properly organised resettlement into community settings of people currently cared for in long stay hospitals should best be pursued.

As you know, Orchard Hill has approximately 150 beds in 14 bungalows. For a long time there has been a policy of resettling those who wish to resettle and are suitable for resettlement. In addition it has been government policy for several years that children should not be cared for in 'mental handicap hospitals'. Orchard Hill has not been accepting new admissions for about 3 years other than to its specialist units, which have policies for limiting patients' length of stay ...

Resettlement as a policy and as a process for individuals must command the confidence of those involved. We are aware that sometimes people have reservations about the policy and that the resettlement of particular individuals is not a success (although for the great majority of people it is a great success). Clearly Orchard Hill could not close if there was not an agreed programme for the resettlement of its residents.

Equally, it is entirely appropriate that the RHA and the NHS and the local authority agencies involved in this field should continue to pursue government policy, which includes an overall presumption that most care will be provided in a community setting. A programme of appropriate and agreed resettlement will therefore continue.

There is no policy that 'Orchard Hill must be closed regardless of what people think'. If its residents and those who help them to exercise their rightful choices feel they wish to remain at Orchard Hill there will be a presumption that those wishes should be heeded unless the opportunity cost of meeting their choices became so disproportionate that, within a cash-limited service, it effectively curtailed the legitimate choices of other people with needs. We would also need to think carefully and discuss the issue with residents and those who care for them if we ever reached the point where agreed resettlement of residents reduced the size of Orchard Hill to such a point that it became non-viable. However such a situation is not imminent."

41. This was an important letter and two comments should be made about it. One, the letter was firmly placed in the public domain; it was sent to a Member of Parliament who, very properly, was investigating matters of concern to his constituents. Two, the letter contained a clear statement of the RHA's policy. This was that Orchard Hill residents would not be relocated against their will, or against the will of their families, unless and until Orchard Hill ceased to be financially viable.
42. The RHA sent a letter to similar effect to Mr and Mrs P., who were parents of an Orchard Hill resident. That letter was dated 3rd May 1993. On page 2 of the letter, the Community Care Development Manager of the RHA said this:

"The Merton and Sutton Community NHS Trust firmly believes that the future of services for all people with a learning disability lies within the Neighbourhood and Community Learning Disabilities Team concept. They have also stated that each person resident in Orchard Hill will be regularly assessed and moved only if it is demonstrably in their best interests and when they have expressed their agreement (in full consultation with relatives)."

43. I have no doubt that both the RHA and the Merton and Sutton Community NHS Trust made similar statements during 1993 to anyone else who enquired what their policy was concerning Orchard Hill.
44. Letters to similar effect were written by the Merton and Sutton Community NHS Trust during 1994. On 11th November 1994, the Merton and Sutton Community NHS Trust sent a letter to all Orchard Hill parents, inviting them to a meeting on 30th November. The letter was signed by Carole Walker, the Director of Care at the NHS Trust, and by the Chairman of the PSA. The third and fourth paragraphs of that letter were as follows:

"Also that evening representatives of the Trust would like to share with you their plans for the future of the service in which Orchard Hill is seen as a Centre of Excellence. You will recall that at the last Parents and Staff Association AGM held on 20th May, Carol Grant, Chief Executive, emphasised the commitment from the Trust not only to retain Orchard Hill but to develop it. The Trust wants to obtain your views and comments on how it sees the services develop in such a way that it provides for the very special needs of people with learning disabilities.

We know the anxiety that meetings can cause and therefore wish to reassure you that there is no intention to close Orchard Hill. The aim is to develop the service in such a way that it meets both current and future needs."

45. In 1995, the South Thames Regional Health Authority applied for planning permission to redevelop the site of Queen Mary's Hospital, which had by then closed down. The Regional Health Authority published a leaflet explaining its proposals. That leaflet made it clear that the adjoining premises of Orchard Hill would not be affected. On the seventh page of the leaflet the RHA said this:

"There are no proposals to close Orchard Hill. Merton and Sutton Community NHS Trust, which runs Orchard Hill, is committed to remaining on the site and improving the quality of the environment for its residents."

46. In about 1997 the various health authorities with responsibility for Orchard Hill appear to have had a change of heart. A dialogue took place between the Merton and Sutton Community NHS Trust and the respondent health authority. The NHS Trust administered Orchard Hill. The respondent health authority, which had been created in 1994, funded most of the residents who were living at Orchard Hill. Both bodies appear to have come to the view that alternative arrangements should be made for the residents at Orchard Hill.
47. On 27th June 1997 there was a meeting between the NHS Trust and the respondent. Paragraph 3 of the minutes of that meeting reads as follows:

"It was also clarified that although the Health Authority still acknowledged the particular needs of people with learning disabilities and their place as a priority group within the scope of commissioning, it was now clear that learning disability services were subject to as much financial rigour as any other aspect of the Health Authority's commissioning portfolio. Another major theme for the Health Authority was its relatively estate heavy position. The region was pushing health authorities to shed estate wherever possible and this would form part of MSW's approach to this issue. It also needed to be noted that even when the old long stay component was removed, Merton, Sutton and Wandsworth remained a high spender per capita compared to other health authorities on learning disabilities."

48. Although these minutes and the other internal documents are delicately phrased, my impression from reading and re-reading them is this: from about 1997 onwards, the officers of both the NHS Trust and the respondent health authority were working towards the goal of relocating residents and selling off as much as possible of the Orchard Hill site.
49. Between February and July of 1997 Mr McCallum, who was Director of Care at the NHS Trust, carried out a global dependency analysis of the Orchard Hill residents. This is generally referred to as the "GDA". It is described in Mr McCallum's witness statement as follows:

"It was not envisaged that the analysis would be used in any way to describe the services required by any one individual. It nevertheless required accurate assessment of each individual resident across 24 criteria.

The GDA was project managed by the head of the Psychology Department, Rosemary Armstrong. It was carried out by a psychologist, and, I think, two psychology assistants working under his supervision. They carried out the assessments by interviewing the care staff who cared for each resident. The reason for assessing individuals was to build up an overall picture of the kind of services and resources which would be required to meet the needs of residents in improved or new-style services. The work was subsequently validated on a sample basis (see below, paragraph 11)."

50. The results of the GDA and its subsequent validation were presented at a board meeting of the NHS Trust on 24th November 1998. At this meeting Dr Sophie Thomson, the Medical Director of Orchard Hill, made an important point which is recorded at page 6 of the minutes:

"There was a need to take into account the feelings of the residents when considering relocation. A number have known nothing but 'hospital style' care for many years and may not wish to be placed in a more 'domestic style' environment.

A guide as to whether clients were happy to be resettled was their behaviour when relocated elsewhere on the Orchard Hill site. Some found this distressing and very unsettling."

51. Dr Thomson's comments highlighted one shortcoming of the GDA, which was this: there was no investigation of the psychological effect upon residents of forcing them to move out of Orchard Hill. Since most residents had lived at Orchard Hill for 20 or 30 years and knew no other home, this was a factor of considerable importance in any decision-making process.
52. A project team comprising members of the NHS Trust and members of the respondent health authority considered various options for the future of Orchard Hill. I do not intend to trace through the detailed discussions and meetings at which the various options were debated. Instead, I shall go straight to the outcome of all those discussions and meetings. This was a consultation document published in August 1999 entitled "Meeting Needs, Making Changes." This document was published jointly by the respondent health authority and the South West London Community NHS Trust. It should be explained at this point that the South West London Community NHS Trust was formed in April 1999 from the merger of Merton and Sutton Community NHS Trust with two other NHS trusts.
53. The consultation document of August 1999 stated in the executive summary on page 1 that the proposal was to close Orchard Hill as a long stay hospital and to make alternative arrangements for the care of the residents. The alternative arrangements as spelt out in the consultation document were as follows: three bungalows would be retained at Orchard Hill to house 24 people. Six persons would be transferred to the Wandle Valley Home, which was run by the South West London Community NHS Trust. Approximately ninety persons (i.e. three quarters of the Orchard Hill residents) would be transferred to homes run by the social services departments of local authorities.
54. It can thus be seen that the consultation document proceeded on the basis that one quarter of the Orchard Hill residents needed health care from the NHS and three-quarters of the Orchard Hill residents did not. There was no basis for this assumption. The GDA did not address the question of which residents needed health care and which residents needed social services care. In my judgment, the fact that no detailed assessment had been done of the individual needs of the 120 residents at this stage was a serious omission.
55. Consultation duly proceeded on the basis of this document. The Merton and Sutton Community Health Council sent out a questionnaire to the close relatives of Orchard Hill residents and received a 55 per cent response rate. The results of this survey revealed the following information: (i) Asked whether residents were well cared for at Orchard Hill, 92 per cent said "yes" and 8 per cent said "in some respects". (ii) The respondents attached high importance to the safe environment provided by Orchard Hill and to the quality of staff there. (iii) 2 per cent of the respondents supported the proposals, 36 per cent opposed the proposals, the remainder "might support the proposals if final arrangements were suitable", or were undecided. (iv) 70 per cent of respondents could see no benefits to be derived from transferring residents away from Orchard Hill.
56. On 11th November 1999, the PSA submitted their response to the consultation document. The PSA stated that their preferred option was to maintain the Orchard Hill site as it was and to update the bungalows already there. However, they recognised that the project team did not share this view.
57. The PSA described the Orchard Hill residents in the following terms:

"This group are very severely mentally handicapped adults with multiple disabilities and varying physical, educational and social needs. They need care and protection from harm in their everyday lives. On average, they are about 40 years old with a mental age of 2 years and would not be able to live without 24 hour protection and supervision."

58. I asked Mr Holgate, in the course of argument, whether that description was accurate. Mr Holgate was unable to give a specific answer to this question because of the unavailability of any detailed assessment of individual residents. He did, however, accept that many of the residents would undoubtedly fall within that description.
59. Let me now return to the PSA response. In support of their preferred option, the PSA said this:

"In our view, the main advantage of the Orchard Hill site in its current form is that everything the residents need is there. At the moment there is no need to transport people to other sites to use services. We are very concerned that the proposed changes will result in services becoming fragmented, which we believe will be detrimental to residents and will result in considerably increased costs. We are also concerned it will simply not be possible for some of the services currently available to be provided in the community, and that, ultimately, the principle of improving services and enhancing individuals' quality of life will not be put into practice."

60. After briefly arguing the case for their preferred option, the PSA recognised that this was likely to be rejected. They therefore put forward a number of constructive suggestions on the assumption that change was inevitably going to happen.
61. A number of health authorities and local authorities responded to the consultation document. They were broadly supportive of the proposals, subject to a number of qualifications and safeguards. The Merton and Sutton Community Health Council responded on 23rd November 1999. After referring to the survey of relatives, the Community Health Council said this:

"... what the CHC would like to see is visible evidence that change is being driven by what is in the best interests of users, patients and the general public. The CHC recognises that it has long been a part of Government and NHS policy to move towards the closure of long-stay institutions and that Orchard Hill is one of the final sites for people with learning disabilities still remaining. The CHC broadly supports the philosophy of care in the community in preference to long-stay institutions, provided that the care is adequately funded and does not curtail or hamper services already provided.

It is recognised that there would be considerable difficulties in maintaining the status quo. As the number of residents declines, it would become more difficult to maintain the existing level of services on site. Some of the buildings would require considerable ongoing expenditure to repair and maintain to an acceptable standard. Without a major source of capital investment, the viability of the site will be increasingly challenged and it would be unacceptable for the residents to remain on a site that was in permanent decline. The CHC is continually frustrated by the difficulties that the NHS faces in securing major capital investment.

It is also recognised that the emergence of local Primary Care Trusts over the coming years will result in the gradual break-up of much of the newly-created South West London Community NHS Trust which currently runs the service. The future role of the Community Trust, if any, in the provision of services for people with learning disabilities has yet to be determined. Although the Health Authority expects to retain a strategic responsibility, it is clear that Social Services will increasingly assume responsibility for services for people with learning, physical and sensory disabilities. This responsibility will be yet further defined following publication of a London-wide and national strategy.

If changes are to go ahead as proposed, we take the view that it would be better to seize hold of all the opportunities (and minimise the threats) presented by change. The CHC has a continuing interest in how the change is achieved and, especially, in ensuring that the quality of life of the residents currently at Orchard Hill is improved to its full potential and not just maintained. The CHC's support for any developments is, and will continue to be, conditional upon this achievement."

62. The CHC then spelt out 20 specific assurances which it sought. The Wandsworth CHC also responded. It adopted the comments made by the Merton and Sutton CHC and added further reservations of its own.
63. The other responses to the consultation exercise have been summarised in an appendix prepared by the respondent health authority in January 2000. I shall not go through them in this judgment.
64. On 20th January 2000 the board of the South West London Community NHS Trust met. The board considered the results of the consultation exercise and also a report prepared by its officers. The board passed the following resolution:

"In the light of the consultation exercise and the ongoing planning work the Trust Board will support the closure of Orchard Hill as a long stay hospital to be replaced by a range of alternatives subject to the board being satisfied that

(a) The interests of the individual residents are safeguarded at all times and their quality of life ultimately improved through excellent care management, advocacy and contingency arrangements (should placements not work out)

(b) Sufficient funding is made available for the transitional costs to ensure (a) above and to ensure that the trust's other services and objectives are not put at risk."

65. Over the next few days Mr Justin Dix, an associate director of the respondent, prepared a paper to be presented on 27th January 2000 at a meeting of the respondent health authority. The gist of this paper is concisely set out in paragraph 1.2 of the summary section:

"This paper:

- presents a summary and analysis of the responses, and draws attention to other developments that have taken place since the consultation was launched;

- recommends that Orchard Hill should close as a long stay hospital for people with learning disabilities, as proposed in the consultation document, with further detailed work being undertaken in line with the response of the Health Authority to the comments received;

- further recommends undertaking a number of other pieces of work in order to set the Orchard Hill project firmly in the context of wider strategic developments within South West London Community Trust and elsewhere."

66. In section 3 the paper draws attention to developments in national and local policy. In section 5 the paper reviews the "Village" option; this had been urged by the PSA if their preferred option of keeping Orchard Hill as it is was rejected. In paragraphs 5.3 to 5.5 Mr Dix wrote as follows:

"5.3. Some residents have also advocated the retention of the current campus, with existing buildings upgraded, on the grounds that Orchard Hill is not a hospital in the usual sense of the word, meets people's needs for round the clock care, and has/can have features associated with more positive forms of provision. Although there are some merits to this view, it is nonetheless a form of congregate provision that must be viewed as inappropriate in the context of modern policy for this client group. The current campus is poor and not fit for the next 10-30 years without considerable money being spent on backlog maintenance and raising standards.

5.4. NHS campuses generally offer less quality of life benefits than other forms of provision (when properly planned). The advantages offered by having services on one discrete site are therefore not, in this context, acceptable when set against the many disadvantages. The services that are intended to replace the existing ones would not only be built to a much higher specification (i.e. space, privacy and amenity), they would also be located in areas that were more likely to be attractive to future generations of service users and capable of flexibility in use.

5.5. Finally, it should be noted that there has not been any deliberate policy of allowing the Orchard Hill site or neighbouring NHS land to enter into a period of decline in order to provide justification for these changes, and every reasonable effort will be made to maintain the environment during any change process. Similarly, there are no financial motives for the changes being proposed now."

67. In paragraphs 5.9 to 5.11 Mr Dix argued that the great majority of residents should be transferred to the care of social services departments; only "a very small number" should continue to receive care through the NHS.
68. The report recommended that after relocation of the Orchard Hill residents, numerous steps should be taken to protect their interests and to further their care. Also, the resources currently spent on those residents should be ring fenced and should continue to be spent on those residents.
69. Section 6 outlined various possible accommodation in which the Orchard Hill residents could be rehoused. This included the three bungalows to be retained at Orchard Hill. The capacity of these bungalows would be reduced to 6, so that a maximum of 18 persons could be accommodated there.
70. After outlining the plan to relocate Orchard Hill residents at various destinations, Mr Dix wrote this in paragraph 6.6 of his paper:

"It should be noted however that the above figures do not represent a fixed position and are only a set of opening planning assumptions. As assessments and care planning proceeds and the application of care criteria reveals more about the services needed to meet client need, the balance of provision may change and alter the requirements for new or replacement services. This is essential if the process is to be led as much as possible by the assessed needs of individual residents."

71. In section 7 of the paper Mr Dix set out the costing of his proposals. In section 8 Mr Dix set out the resolutions which he was inviting the respondent health authority to pass.
72. On 27th January 2000 the health authority duly met. Mrs Gallagher, the Chief Executive of the respondent, introduced Mr Dix's paper. There was then a lengthy discussion, during which members of the public and officers of the authority expressed their views. At the end of the meeting the health authority passed a number of resolutions including the following:

"1. ... that a programme of work should be put in place that would close Orchard Hill as a long stay hospital and, in conjunction with other stakeholders, provide the required range of community-based replacement services for the 119 long stay residents of the site ...

3. ... that this work programme should be project managed by the South West London Community Trust in close collaboration with the Health Authority and other stakeholders; and that the project should proceed on the basis of a close and continuing scrutiny of care standards, affordability, and national, London-wide, and local borough-based policy developments that offered the prospect of more equitable and consistent services for people with learning disabilities."

73. The relatives of many of the residents were aggrieved by this decision. Accordingly, the fathers of three of those residents have commenced the present proceedings, acting as litigation friends for their respective sons. The applicants themselves are unaware of this litigation. Two of them have a mental age of two and the third has a mental age of less than five.

PART 3: THE PRESENT PROCEEDINGS

74. The applicants seek an order of certiorari to quash the respondent's decision of 27th January 2000 to close Orchard Hill hospital. They also seek declarations and various consequential items of relief. Those grounds of attack which have been seriously pursued may be distilled under three heads: one, the consultation process was unfair; two, the decision of 27th January 2000 was unlawful because it was based on a misapplication of central government policy; three, the decision of 27th January was unlawful because it failed to take into account relevant considerations.
75. It seems to me that the most formidable of the applicant's arguments is the third one. I shall therefore address that argument first and then consider the other two arguments.

PART 4: DID THE RESPONDENT TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS AT ITS MEETING ON 27TH JANUARY 2000?

76. There are two important matters upon which the consultation document of August 1999 and Mr Dix's paper on January 2000 are silent. They are: (a) the promises previously made and the policy previously declared by the respondent's predecessors; (b) a specific assessment of the condition and needs of the Orchard Hill residents.
77. Let me deal with these two matters separately.

(a) The promises previously made and the policy previously declared by the respondent's predecessors

78. I have set out in part two above my findings of fact in relation to this issue. In the 1970s and 1980s the families of residents received promises that the residents could stay at Orchard Hill for life. These promises are referred to in a number of contemporaneous documents. No reference is made to these promises in the consultation document of August 1999 or Mr Dix's paper of January 2000. Obviously, a public authority is not bound for ever by promises which it or its predecessor has made. But, at the very least, the public authority must take those promises into account when considering a course of action which goes in the opposite direction. In R v North and East Devon H.A., Ex parte C. [1999] 2 WLR 622 at 645 the Court of Appeal outlined three ways in which a public authority's earlier promises may impact upon current decision-making. All three approaches start from the premise that the public authority must be aware of its earlier promises and consider their effect. In the present case the members of the health authority could not bear in mind the previous promises, because those proposals were not drawn to their attention. In my judgment, the absence of any reference to the earlier promises in the papers before the health authority is a flaw in the decision-making process.
79. I turn now to the statements of policy made by the RHA and the NHS Trust in 1993 and 1994 following the 1993 consultation. They are referred to in part 2 of this judgment. It is probably more accurate to characterise the assertions made during this period as statements of policy rather than promises. The essence of the stated policy was this: residents of Orchard Hill would be resettled in the community if their families agreed and if this could properly be done. However, there was no intention to close Orchard Hill. Furthermore, residents would not be resettled or relocated if their families did not agree, save in circumstances of financial necessity.
80. In the course of argument, I suggested to Mr Holgate that what the respondent is now doing appears to go against what was said in 1993 and 1994. Mr Holgate responded, with some vigour, that it would be absurd if the health authority were fettered now by what or its predecessor intended in 1993. Of course there is force in this. On the other hand, the health authority is not entitled simply to ignore its previously declared policy. At the very least, the health authority must consider the previous policy and must state why it is departing from that previous policy. There is no reference in the papers before the health authority in January 2000 to the policy which had previously been declared in 1993 and 1994. That is a flaw in the decision-making process.
81. In defence of the respondent's position, Mr Holgate submits that during the consultation period the families of the residents did not raise these points. Therefore, there was no obligation on the health authority to take these matters into account.
82. In my judgment, there are four answers to this contention:

(1) The PSA clearly and unequivocally drew attention to the promise of homes for life in its written response to the 1993 consultation. I have quoted the relevant extract in part 2 of this judgment. It should be noted that this passage in the PSA's response document was typed in bold, underlined and surrounded by a box. To give further emphasis most of the passage was in capital letters.

(2) The families of Orchard Hill residents are described as follows in the respondent's evidence:

"The families and carers of the residents were a disparate group and had problems organising themselves."

83. (See paragraph 29 of Mr McCallum's witness statement). In my judgment, this disparate and disorganised group simply did not appreciate in 1999 the potential significance of the promises to which they had drawn attention six years earlier.

(3) The response of the PSA in November 1999 was drafted with professional assistance. The respondent generously engaged Miss Jane Harris, a consultant with Cordis Bright Consulting, to assist the relatives of Orchard Hill residents in responding to the 1999 consultation exercise. The response document which Miss Harris drafted is well-written and excellently structured. It offers a brief defence of the relatives' preferred option, namely to keep Orchard Hill as it is. The document then addresses the perceived political reality, namely that change is inevitable. A note of resignation seems to run through the document. The reason for this note of resignation may perhaps be gleaned from paragraph 5 of Mr McCallum's witness statement:

"I regularly expressed the view to relatives, in successive meetings, that managed change would be necessary in order to protect the welfare of the residents."

84. In my judgment, the fact that the PSA's response document appeared to accept the political reality did not absolve the health authority from considering the effect of previous promises of a home for life, which had been clearly flagged up in the PSA's response document of 1993.

(4) There was no obligation on consultees to point out the statements of policy made by the RHA and the NHS Trust in 1993 and 1994. A public authority must be assumed to be aware of its own publicly stated policy. I have sympathy for the hard working administrators in the health service, who have had to deal with many reorganisations in recent years. As a matter of principle, however, health authorities cannot rely upon their own upheavals as a justification for departing from, or being ignorant of, statements of local policy affecting particular groups of patients.

(b) A specific assessment of the condition and needs of the Orchard Hill residents

85. It is common ground that no specific assessment of the condition and needs of individual Orchard Hill residents was carried out before the closure decision was taken. Accordingly, no such assessment was contained in the consultation document or in Mr Dix's paper of January 2000.
86. Mr Holgate submits that this is simply a matter of timing. The detailed assessment can be carried out subsequently as part of the care management process.
87. I do not agree with this submission for two reasons:

(1) All residents of Orchard Hill are currently under the care of a consultant psychiatrist. They are in receipt of health care from the NHS (see paragraph 13 of Mrs Gallagher's witness statement). Unless and until there is a proper medical assessment of the individual residents, it should not be assumed that three-quarters of them can cease receiving health care and can become the responsibility of social services.

(2) The psychological effect of uprooting this profoundly disabled group of people from the homes where they have lived for 20 or 30 years is a matter of importance. I do not, of course, say that it is decisive. But it needs to be assessed and understood before any decision about closure is taken. Neither the GDA nor the material before the health authority on 27th January 2000 gave any information about this important matter.

88. The next argument advanced by Mr Holgate was based upon the decision of the Court of Appeal in R v North and East Devon H.A., Ex parte C. [2000] 2 WLR 622 at pages 658 to 660. In that case the Court of Appeal said this at paragraphs 101 to 103 of the judgment:

"101. The health authority also contended that the judge was wrong to hold that it was under an obligation to identify alternative placements for M.C. prior to the closure decision. Reliance was placed on the stages of the transfer procedure referred to above. It was submitted that the obligation to consider the options for where care might best be provided only arose at the third stage of the four-stage process. The new care setting for each individual patient was only identified at the fourth stage of the transfer process.

102. In our judgment the health authority's handling of the assessments and the finding of suitable alternative placement was not established as a separate ground for challenging the decision to close Mardon House.

103. The concerns of the health authority about the practical implications of the judge's decision on these two points are well understood. In the absence of special circumstances, normally we would expect it to be unrealistic and unreasonable, on grounds of prematurity alone, for the health authority in all cases to make assessments of patients and to take decisions on the details of placement ahead of a decision on closure. Neither the statutory provisions nor the guidance issued expressly require assessments to be made or decisions on alternative placements to be taken before a decision to close can be lawfully made."

89. Mr Holgate submits that precisely the same principles apply in the present case.
90. In relation to this issue, Mr Gordon's argument was as follows: C. was a case in which the health authority had, before reaching its closure decision, conducted a prior assessment of need in order to determine whether the applicant needed health or social care. There had also been an assessment by Social Services as to whether she needed social care (see paragraph 95 of the judgment). It is against that background of completed assessments that the submission was made that this was not sufficient and that there needed to be a multi-disciplinary assessment of need before the closure decision could be reached (see paragraph 95 of the judgment). It is also against this background that the Court of Appeal held that it was not necessary in all cases for assessments to be made and that the guidance there under consideration (which is not in play in this case) did not require prior assessments to determine the detail of potential alternative placements before a closure decision was made.
91. On this issue I accept Mr Gordon's argument. It should be remembered that M.C. was not a person with learning disabilities. The government guidance which is applicable in the present case, but which was not applicable in C., is HSG(92)42. This circular states on page 2 as follows:

"The large majority of people with learning disabilities not living with their families can be cared for in residential accommodation arranged through the relevant social services authority. There are, however, likely to be a small number of people with severe or profound learning disabilities and physical, sensory or psychiatric conditions who need long term residential care in a health setting. Where this seems to be the case a multi-professional assessment and consultation with parents or carers are necessary to determine whether the services they need can only be provided by the NHS or whether other alternatives would be more appropriate and cost effective."

92. The residents of Orchard Hill, whose problems are far greater than those of the average person with learning disability, require a detailed assessment of the kind set out in HSG(92)42 before any decision can be taken about moving them out of NHS care.
93. For all of the above reasons, I hold that the absence of a specific assessment of the condition and needs of the Orchard Hill residents was a flaw in the decision-making process.
94. Consequence of the above failures
95. There are two important matters which the health authority failed to take into consideration in its decision-making process. They are: (a) the promises previously made and the policy previously declared by the respondent's predecessors; (b) a specific assessment of the condition and needs of the Orchard Hill residents.
96. What is the consequence of these failures?
97. So far as the first failure is concerned, Mr Holgate submitted that the court itself should put matters right. The court should consider the respondent's previous promises and previously declared policy on the one hand, and it should consider the factors in favour of closing Orchard Hill on the other hand. Thus Mr Holgate invited me to carry out the exercise of weighing up and evaluating which his client had omitted to do. In order to assist me in this exercise, on Tuesday 25th July, which was Day 4 of the hearing, Mr Holgate formulated seven factors which I should place in the balance in favour of closing Orchard Hill as a long stay hospital. They are as follows:

(1) The existing premises at Orchard Hill are substandard.

(2) The health authority intends to improve the three bungalows which are retained and to improve other accommodation elsewhere, to which some residents may go.

(3) Some facilities will be retained on part of the Orchard Hill land. If it turns out that more bungalows are needed, then more can be built on the retained land.

(4) Wherever the Orchard Hill residents are accommodated, the current level of funding for them will be maintained.

(5) The effect of closing Orchard Hill as a long stay hospital is that a greater proportion of the current monies will be spent on patient care and a lesser proportion or estate management.

(6) The health authority will try to secure that the present Orchard Hill staff are employed at the various locations where Orchard Hill residents are relocated. (7) Once Orchard Hill residents have been relocated in the community, they will enjoy a less institutional style of life.

98. In response to Mr Holgate's invitation, I explored some of these factors in the course of argument.
99. As to the first factor, It seems to me that the real problem with the Orchard Hill premises is that in the last few years the health authority and the NHS Trust have allowed a backlog of maintenance work to accumulate. The minutes of the meeting of the Merton and Sutton Community NHS Trust on 24th November 1998 record that by that date £800,000 needed to be spent on backlog maintenance work. The fact that a backlog of maintenance work has been allowed to accumulate would not seem to be a reason for condemning the premises as substandard, save in circumstances of financial necessity.
100. I turn now to the second factor. The intention to improve the three retained bungalows does not seem to me to be a reason to demolish the rest or to close the hospital. No costings have been put forward in evidence by the respondent and no financial argument has been developed by Mr Holgate.
101. I turn now to the third factor. The argument, as developed during the hearing, was to this effect: all bungalows except three will be demolished. If it turns out that too many bungalows have been demolished, then more bungalows can be built again. I would question whether this is a wise use of public resources.
102. I turn now to the fourth factor. Whilst it is heartening that the current level of funding will be ring fenced for Orchard Hill residents, I do not understand why this intention requires the closure of Orchard Hill Hospital. There is no suggestion that the condition set out in the Regional Health Authority's letter to Mr Forman MP, dated 5th May 1993, has been triggered. That condition was formulated as follows:

"If its [Orchard Hill's] residents and those who help them to exercise their rightful choices feel they wish to remain at Orchard Hill there will be a presumption that those wishes should be heeded unless the opportunity cost of meeting their choice became so disproportionate that, within a cash-limited service, it effectively curtailed the legitimate choices of other people with needs."

103. I turn now to the fifth factor. No figures have been provided in this regard. I have no idea how the monies which will, allegedly, be spent on new accommodation for the Orchard Hill residents compares with the cost of backlog maintenance work at Orchard Hill. Although I should like to assist both parties by assessing the seven factors as invited by Mr Holgate, I must confess defeat in relation to number 5.
104. I turn now to the sixth factor. Here there seems to be a real problem. On the evidence, Orchard Hill enjoys the service of hard-working and long-serving staff, who have built up a good relationship with the residents. If the residents are now dispersed to many different places, two difficulties will arise. First, it is by no means clear that the staff will wish to work in this wholly different situation. Secondly, if a member of staff does transfer to one of the new locations, inevitably that member of staff will only be dealing with a very small proportion of his or her former clientele.
105. As to the seventh factor, it is necessary to bear in mind the severity of disability of the Orchard Hill residents. I fully recognise the benefits of care in the community and the drawbacks of institutional life. However, on the evidence, the Orchard Hill residents have an average mental age of two and suffer from varying physical and mental disabilities. At the moment they live in bungalows on a therapeutic campus with 24 hour care. I do question whether "institutionalisation" is really a problem for these particular individuals. When I put this point to Mr Holgate in the course of argument, his response was characteristically fair and candid. He said that if factor 7 was the only one which he could rely upon, then he would not be wasting the court's time.
106. Now, let me stand back and look at matters in the round. Much though I would like to assist Mr Holgate, I do not think it is right for the court to step in and to do the evaluation exercise which the respondent omitted to do. There is not sufficient material before me to form a final view, as opposed to a tentative view, in relation to the seven factors. Moreover, that tentative view does not incline in favour of the respondent's case. Furthermore, from a constitutional view point, it is not the function of the court to take decisions which lie within the province of health authorities. The proper course is for this court to make an order for certiorari quashing the decision of 27th January 2000. When the respondent reconsiders the question of closing Orchard Hill Hospital, it must take into account the relevant factors and the relevant information.

PART 5: WAS THE CONSULTATION PROCESS UNFAIR?

107. In relation to this issue, it is right to note at the outset that the respondent went to considerable lengths to achieve a fair consultation process. It published the consultation document in August 1999. It allowed a three month period for responses. The respondent provided the families of the Orchard Hill residents with the services of an advocate to assist in the preparation of a group response. Once the responses have been received, Mr Dix and his staff carefully studied them. They prepared a summary of those responses, which was supplied to members of the health authority for consideration at their meeting on 27th January 2000. In all these respects, the respondent's behaviour was commendable.
108. Mr Gordon submits that the consultation process was unfair on two grounds: one, the respondent started consultation at too early a stage. By the time the respondent started consultation, it had already prejudged the issues. Two, the respondent failed to address the concerns of relatives which were raised during the course of consultation.
109. In relation to the first ground, Mr Gordon relies upon the decision of Moses J in R v North and East Devon H.A., Ex parte Pow [1997] 1 CCLR 280. In that case it was held that the North and East Devon Health Authority commenced consultation at too late a stage in respect of its proposal to close two hospitals. Pursuant to Regulation 18 of the Community Health Council's Regulations 1996, the authority ought to have consulted the Community Health Council when the proposal was still at a formative stage.
110. It seems to me that the facts of Ex parte Pow are very different from the facts of the present case. Furthermore, I agree with Mr Holgate that there is an inconsistency in this aspect of the applicants' case. On the one hand, the applicants submit that the respondent should have consulted sooner. On the other hand, they contend that the respondent should have obtained detailed assessments on all 120 patients before going out to consultation. Mr Gordon submits that the respondent approached the consultation exercise with a closed mind. However, I am not persuaded that this is so. It is certainly true that the members of the project team appear to have formed firm views about the future of Orchard Hill. But I have no reason to doubt that on 27th January 2000 the members of the health authority considered the responses to consultation both conscientiously and fairly. The members of the health authority fell into error because the relevant factors and the relevant information were not placed before them for consideration.
111. I turn now to the second ground raised by Mr Gordon. It is quite true that the respondent did not accede to the arguments advanced by the PSA in its response to the consultation. But I have no doubt that the members of the health authority considered those arguments. They were summarised by Mr Dix in his paper for the meeting of 27th January. One proposal raised by the PSA, namely pursuing the "Village" option, was discussed at some length in Mr Dix's paper.
112. Of course, the consultation process was damaged by the absence of two very important topics from the consultation document of August 1999. This omission is discussed in part 4 above. In my judgment, however, the applicants' true basis for complaint in this regard should not be characterised as "unfair consultation". The true basis for their complaint is failure by the decision-maker to take into account relevant considerations, as discussed in part 4 above.

PART 6: THE ALLEGED MISAPPLICATION OF CENTRAL GOVERNMENT POLICY

113. The relevant central government policy is contained in three documents: (i) Circular HSG(92)42, which is referred to in part 4 above. (ii) A document entitled "Signposts for success", which was published by the NHS Executive in January 1998. This document is referred to in part 1 above. (iii) A policy impact study entitled "Facing the Facts", which was published by the Department of Health in November 1999. This emerged after the consultation period. Also it was seen by Mrs Gallagher as reflecting previous policy rather than changing it (see paragraph 21 of her witness statement).
114. It should be noted that the 1992 Circular has not been superseded by the later publications. On the contrary, Circular HSG(92)42 was reproduced as an appendix to "Signposts for Success".
115. Section 6 of "Signposts for Success" states as follows:

"6.1. In the late 1960s there were 60,000 people with learning disabilities living in mental handicap hospitals, although many more people lived in the community, usually with their families. The 1971 White Paper 'Better Services for the Mentally Handicapped' was based on the shift from care in hospital to care in community. This policy was developed because there was an increasing concern about the adverse effects of institutionalisation and segregation and recognition that most people with a learning disability did not need to live in a hospital in order to have their health needs met. Hence there were two reasons for the hospital closure programmes that have successfully taken place for long-stay hospital residents. As a result there has been deinstitutionalisation with the development of a wide range of community facilities. There has also been demedicalisation with a move from a medical/treatment model to that of a social model of care for disabled people, with emphasis on their right to an ordinary life. However there has been concern that the emphasis on the social model has led to the neglect of health needs, which, even if extensive, can usually be met within a domestic-scale care environment if the right skills are available.

6.2. This good practice guidance reaffirms the commitment in HSG(92)43 regarding health authorities continuing to work with matching social services departments in planning the transfer of the remaining residents, and resources to support them, to the community by a mutually agreed date, with a view to closing the old mental handicap hospitals as quickly as practicable. In 1997 there were less than 3,000 people waiting to move out of NHS care.

6.3. It is expected that over the next two to three years the people still living in these hospitals will either transfer to specialist NHS provided care (reprovision) or to live in community settings often with NHS specialist input (resettlement).

6.4. It is strongly recommended that any work relating to reprovision of hospital services or the development of new community services is carried out jointly with partners from the local authority, the independent sector, health service providers and with a strong input from users, relatives and careers."

116. The paragraphs which follow deal in more detail with reprovision and resettlement.
117. Mr Gordon submits that the policy set out in section 6 of "Signposts for Success" does not apply to NHS facilities such as Orchard Hill. The residential accommodation at Orchard Hill comprises individual bungalows standing on a therapeutic campus. Mr Gordon also relies on a letter, dated 29th April 1994, written by the Merton and Sutton NHS Trust to the South West Thames Regional Health Authority. This letter was written with a view to providing information for Mr Forman MP. That letter states that the reason why the proposal to close Orchard Hill had been abandoned was because it was recognised that Orchard Hill was not an institution.
118. Mr Gordon contends that the various documents leading up to the closure decision of 1990 proceed upon a mistaken basis. That mistaken basis is that Orchard Hill falls within the category of "institutions" which government policy required to be closed.
119. Mr Holgate, on the other hand, submits that there has been no misapplication of government policy. Orchard Hill does create a congregation of people. It does have features of institutional life. He submits that the respondent's interpretation of government policy in the consultation document of August 1999 and in Mr Dix's paper of January 2000 is a reasonable interpretation. Furthermore, he relies on Mrs Gallagher's witness statement, which shows that the respondent had regard to government policy, but did not follow it slavishly.
120. In my view, one starts from the proposition that Orchard Hill is a hospital. It falls within the definition of "hospital" contained in section 128 of the National Health Service Act 1997. Having said that, however, Orchard Hill is very different from the older, or more traditional, mental handicap hospitals and mental hospitals. It possesses fewer of the objectionable features of those institutions and it possesses the advantages which were referred to earlier in this judgment.
121. It seems to me, however, that the real problem in the present case is not some doctrinal error by the health authority, but rather the lack of vital information. As set out in part 4 above, the health authority did not have the detailed assessment of individual residents which page 3 of Circular HSG(92)42 required. Without this information, the health authority could not determine how central government policy impacted upon the group of NHS patients currently living at Orchard Hill.
122. I have every confidence that when the health authority reconsiders this matter, armed with the relevant information, the health authority will properly interpret central government policy and will attach proper weight to that policy in the circumstances of this particular case.

PART 7: CONCLUSION

123. For the reasons stated in part 4 of this judgment, I make an order of certiorari quashing the respondent's decision of 27th January 2000. I will, of course, hear counsel's submissions as to the terms of any further relief.
124. Finally, I thank both leading counsel for the excellence of their oral submissions, and both junior counsel for the most helpful written submissions which were clearly a team effort on both sides.
Order: Order of certiorari quashing respondent's decision of 27th January 2000. Respondent ordered to pay applicants' costs. Permission to appeal refused.