QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF MAUREEN SMITH
|(1) EAST KENT HOSPITAL NHS TRUST
(2) KENT AND MEDWAY HEALTH AUTHORITY
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Neil Garnham QC and Mr. Angus McCullough (instructed by Capsticks for the defendant)
Crown Copyright ©
The initial proposal for KCH
The Secretary of State's response
"My overriding concern is that any new Trust structure in East Kent supports the implementation of the changes to hospital services which I announced in December …
It is clear that some of the respondents to the consultation have seen a single Trust as a means of renegotiating my decision on service changes in East Kent.
I made it clear when I announced the service changes that my decision was not negotiable.
Turning to cancer, it is clear that many of the respondents to consultation were under the misapprehension that the proposal was to move specialist cancer services, rather than simply the management of those services, to Mid Kent Healthcare Trust from Kent and Canterbury Hospitals Trust. Let me repeat that the decision I announced in December on service changes in East Kent was final. The retention of specialist cancer services at Kent and Canterbury Hospitals was part of that decision. Specialist cancer services at Canterbury, therefore, have a firm future".
The consequence of the Secretary of State's decision
The 2001 proposals and the new round of consultation
"the chosen option for configuring acute services which was endorsed by [the Secretary of State in the December 1998 letter] was right at the time it was taken. However, we are three years on and we have seen the introduction of the whole agenda for clinical guidance. We must therefore consider whether that configuration would still be able to meet present-day needs".
The genesis of the March 2002 decision
The Statutory Framework
In any case where a Council is not satisfied 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.
Rule 18(5) of the 1996 Regulations provides:
Where further consultation has been required under paragraph (5), the Health Authority shall, having regard to the outcome of such further consultation, reconsider any decision it has taken in relation to the proposal in question.
The Grounds of Challenge
(i) the proposal in the March 2002 decision was so different from those options contained in the consultation document that there should have been fresh consultation about it before it was adopted by the defendants;
(ii) the defendants have failed to show how the proposal adopted in the March 2002 decision came into existence as a result of the public consultation especially as the defendant had extended the consultation period solely for the benefit of the doctors;
(iii) the defendants failed to consult (a) on the risks of elective surgery (other than day surgery) at KCH without critical care backup, (b) on the use of patient-selected elective surgery at KCH rather than specialty-selected elective surgery and (c) on the extent to which the selected option would affect cancer services at KCH or fail to fulfil the promise of the Secretary of State made in 1999;
(iv) the defendants failed to allow the consultees to give their views on matters other than the four options specified in the consultation paper and failed to draw the attention of the consultees to the issues set out in issue (iii) above, especially as they were considered by the clinicians during and after the meeting on 4 March 2002 and so they should have been included in the consultation with the public;
(v) the proposals selected in the March 2002 decision were so fluid when adopted by the defendants that they were still being evolved at that time without the benefit of public consultation;
(vi) the failure of the defendants to acknowledge or to take into account in the consultation and in the decision-making process, the legitimate expectation of the claimant emanating from a representation made by the Secretary of State that a full specialist cancer service would remain at KCH.
The duty to consult
"… NHS bodies, staff and health professionals alike, will need to work in partnership with all parts of the local community, not just those groups they have traditionally had links with (important though those are) so that those who have in the past been marginalised or ignored can have a voice.
It is also important that public and patient partnership is genuine, not token, so that people at a local and national level, are fully involved in decisions both on their own care and on the way in which services are provided. The NHS needs to ensure that it systematically engages with, and listens to, its local communities. [It needs to] involve the public as citizens in health and health service decision making processes …
… patient and public partnership "should not be a discrete 'add on' task, but part of the way all NHS organisations work", permeating all areas of the NHS and health".
(i) The proposal in the March 2002 decision was so different from the options contained in the consultation paper that there should have been fresh consultation about it before it was adopted by the defendants
The need for re-consultation – the legal principles
"To some extent the matter must be one of impression. Nevertheless, however widely one construes 'modification', it seems to me that the difference between the proposals is so great that one cannot reasonably regard the second as a 'modification' of the first. (For brevity, I may say, I use the word 'of' as including 'in'; the statutory words are, of course, 'modifications therein''). For one proposal to be fairly regarded as a modification of another proposal, one must be able to perceive enough in it of that other to recognise it as still being that other proposal, even though changed. The temptation is into metaphysics, into considering how much of a table can be changed or replaced or modified without it ceasing to be the same table, and so on. The line may well be hard to draw, but there comes a point where the modifications have swamped or eaten away so much of the original that it is impossible to regard what is there as still being the original in a modified form.
Analogies must no doubt be used with caution; but they may help to illustrate the point. A motor car may remain the same motor car, though modified, even if extensive alterations are made to the coachwork, the upholstery, the engine, the exhaust system and a dozen other things. Yet if the engine were to be removed from the car and dealt with separately, nobody would regard that engine as being the car with modifications, or as a modification of the car. Again, to turn from chattels to concepts, a proposal that A should sell his house to B with vacant possession plainly includes the obligation for A to vacate his house. Yet it if were then to be proposed that A should merely vacate his house, I find it impossible to regard the second proposal as being the first proposal with modifications. True, it was part of, and implicit in, the first proposal, and an important part at that. Yet it was only a part of a proposal which contained many other important parts, and it does not seem to me that the abstraction of a mere part of a proposal can, unless it is at least a very substantial part, be regarded as being the same proposal with modifications …. In a crude way I suppose one could say that if what is at present proposed amounts to the original proposal with bits knocked off, it can be regarded as the original proposal with modifications, whereas if more has to be knocked off than is left behind, it cannot" (pages 1257A-G).
"A consultation procedure, if it is to be as full and fair as it ought to be, takes considerable time and meanwhile the underlying facts and projections are changing all the time. It is not just a question of an iterative process, which can speedily be run through a computer. Each consultation process if it produces any changes has the potential to give rise to an expectation in others, but they will be consulted about any changes. If the courts are to be too liberal in the use of their power of judicial review to compel consultation on any change, there is a danger that the process will prevent any change – either in the sense that the authority will be disinclined to make any change because of the repeated consultation process which this might engender, or in the sense that no decision gets taken because consultation never comes to an end. One must not forget there are those with legitimate expectations that decisions will be taken".
The differences between Option D and the March 2002 decision
(a) Safety implications of the option selected
(b) The proposal under challenge was untried
(c) The facility of day surgery in the proposal under challenge entailed selection not by reason of specialism, but because of the patient's characteristics
"Individuals who cannot make use of the elective surgery at KCH without a [critical care unit] (i) will need referral to other hospitals where they will be subject to delays and cancellation and delays caused by combining acute surgery with elective surgery and (ii) they will have to travel further. This has a particularly adverse effect on the elderly as there are those who are otherwise physically vulnerable who are a significant constituency in East Kent ..".
(ii) The defendants have failed to show how the proposal adopted in March 2002 came into existence as a result of the public consultation, especially as the defendants had extended the consultation period for the benefit of the clinicians
(a) Failing to take into account the product of consultation
"A proposal can properly be said to emerge from public consultation first, if the final proposal is based on a consensus or agreement arrived at by the consultees and second, that it is arrived at as a result of the consultees' discussions".
(b) The wrongful extension of consultation for the benefit of the clinicians
(iii) The defendants failed to consult (a) on the risks of elective surgery, other than day surgery at EKCH without critical care backup, (b) on the use of patient-selected elective surgery at KCH rather than specially selected elective surgery and (c) on the extent to which the selected option would effect cancer services at KCH or fail to fulfil the promise of the Secretary of State made in 1999
(iv) The defendants failed to allow the consultees to give their views on matters other than four specified options in the consultation and failed to draw the attention of the consultees to the issues set out in issue (iii), especially as they were considered by the clinicians and should have been the subject of public consultation
(vi) The proposal under challenge was so fluid when adopted by the defendants that it was still evolving without the benefit of public consultation
(vi) The failure of the defendants to acknowledge or take into account in the consultation or in the decision-making process the legitimate expectation of the claimant emanating from a representation made by the Secretary of State that a full specialist cancer service would remain at KCH
(i) No representation made
"Turning to cancer, it is clear that many of the respondents to consultation were under the misapprehension that the proposal was to move specialist cancer services rather than simply the management of those services to Mid Kent Health Care Trust from Kent and Canterbury Hospitals Trust. Let me repeat the decision I announced in December on service changes in East Kent was final. The retention of specialist cancer services at Kent and Canterbury hospital was part of that decision. Specialist cancer services at Canterbury therefore have a firm future".
(a) "There are not enough cases in the East Kent area for Canterbury to sustain a complete or self-contained cancer centre" (paragraph 95).
(b) "There may be conditions where it would not prove possible to sustain this configuration" (paragraph 249).
(c) "There is no hospital in Kent of sufficient size or containing the breadth of clinical facilities to be designated as a Cancer Centre. The implementation of the Calman-Hine principles in the county has resulted in the following configuration … the designation … of a joint Kent Oncology Centre based at both Kent and Canterbury and Maidstone Hospitals … Kent and Canterbury Hospital is not a Calman-Hine Cancer Centre in its own right" (paragraph 11).
(d) "This network of surgery will continue except that in the preferred option [the option eventually selected] the inpatient surgical work at the Kent and Canterbury would be transferred to WHH and QEQM … Day surgery would continue at the Kent and Canterbury and QEQM in both options" (paragraph 17).
(e) "Cancer units for specific tumours already designated in South Kent Hospitals would continue as before. Cancer units for tumours currently designated at QEQM and K & C would serve the Canterbury and Thanet populations but would normally be based at the "full" district general hospitals serving that part of East Kent" (namely Margate and Ashford since this will be where the main concentration of surgical expertise will be based) (paragraph 19).
(f) "East Kent patients may have to be treated out of district by specialist surgical teams, but it must be stressed that this is a possibility irrespective (of) Tomorrow's Health Care" (paragraph 24).
(g) "Complex regimes of chemotherapy often require patients to be admitted to hospital on an in-patient basis … typically this will mean that the patient is managed by clinical oncologists … or by medical oncologists … (there are none of these specialities in East Kent but one visits at Maidstone Hospital) … and clinical haematologists … these clinicians must work in Cancer Centre designated departments" (paragraph 26).
(h) "As the Oncology Centre at Maidstone develops and other cancer centres functions consolidate on that site the pressure will increase of radiotherapy services at the Kent and Canterbury site to transfer to Maidstone. This would be the situation regardless of whichever option was chosen for the future configuration of acute services" (paragraph 35).
(i) "The commissioning specialist cancer services in East Kent, where this is possible … would be achieved by … maintaining complex chemotherapy and radiotherapy at Kent and Canterbury Hospital … by … maintaining medical services in Canterbury which would provide the support services required. The service would continue whilst Tomorrow's Health Care is being implemented for other services and then reassessment would be taken in 3-4 years time" (paragraph 61).
(ii) No clear and unambiguous representation
(iii) The representations made provided for change and there cannot have been a legitimate expectation that they would not change
"in setting this strategic direction, the HA will endorse the "Better Balance" option based on William Harvey Hospital and Queen Elizabeth the Queen Mother Hospital with the additional services described in that option retained at Kent and Canterbury Hospital until or unless the trends described by the HA prevent the achievement of acceptable service quality on the third site or compromises the viability or quality of the two main acute hospital sites. The HA is determined to ensure early implementation and sustainability of the chosen option" (unanimously passed).
(iv) Lack of expectation on the part of the claimant
(v) No claim can be brought for failure to give effect to a legitimate expectation if it would mean that the defendant would have to act in breach of statutory duty
"It is quite vital in the exercise of the jurisdiction of this court to keep to the forefront of one's mind that it is only the most extreme of examples of bad administration which can successfully attract judicial review of a decision otherwise lawfully arrived at. It follows that the Court should not strain to find technical defects which will make the obligations imposed on local authorities unworkable".
MR JUSTICE SILBER: I am grateful, Mr McCullough, for your list of corrections. I do not know if you have any, Ms Morris, I am sure you must have?
MS MORRIS: My Lord, rather embarrassingly, try as I might, I have been unable to improve on Mr McCullough's list, so I have no additional ones.
MR JUSTICE SILBER: Yes. Well, I have one or two amendments of my own that I am going to make, and a copy of the judgment will be available later today. But, in my judgment, I dismiss the application and I stress the application is not concerned with the merits or defects of the decision, but it deals with a different issue of whether the decision could be quashed on public law grounds as the way in which it was reached. I finish off my judgment by explaining that I have no doubt that my decision will cause disappointment to those who strive for an increase of services at KCH, and again stress it is a function of the court to consider the merits of the decision but to limit it to ensure that the body has acted according to the law. I concluded that the defendants have so acted. Therefore, for those reasons, I dismiss the application.
MR MCCULLOUGH: My Lord, I prepared a draft order in the light of the terms of your Lordship's judgment, that has been agreed with Ms Morris, perhaps I could hand it up (Same Handed). My Lord, briefly, to take your Lordship through it, mostly it is self-explanatory. Paragraph 1: judgment for the defendants with the claim for judicial review be dismissed. Paragraph 2, relates to an undertaking that the----
MR JUSTICE SILBER: Yes, I have read that. I have referred to that in my judgment.
MR MCCULLOUGH: Indeed. In the light of your Lordship's judgment the defendants ask to be released from that undertaking. In terms of costs your Lordship will remember----
MR JUSTICE SILBER: In other words, check pay up till the time when Mrs Smith took over as claimant because she is publicly funded.
MR MCCULLOUGH: Exactly. Paragraph 3 deals with checks liability, and paragraph 4 in the new terms that are applicable in relation to the public funding regime.
MR JUSTICE SILBER: Paragraph 5, quite rightly, the costs of the claimant are to be detailed assessed?
MR MCCULLOUGH: My Lord, that is right, the old legal aid taxation provision.
MR JUSTICE SILBER: I make that order. Thank you very much.
MS MORRIS: My Lord, I make an application for permission to appeal. I should indicate that I make this really to protect the claimant's position because, plainly, no one has had any opportunity to consider the very lengthy judgment.
MR JUSTICE SILBER: I know, the difficulty is they only know about it an hour beforehand.
MS MORRIS: Precisely, my Lord. What I would say in support of that application is plainly it is a matter of considerable public interest which affects a great number of people, in that sense I say the second limb----
MR JUSTICE SILBER: There is a difference between public interest and matters of law and public importance.
MS MORRIS: That is certainly right, my Lord. We would say that the particular issue engaged, namely the extent to which safety considerations required further consultation may fall within that second limb. My Lord, that is all I am really able to say at this particular stage without further consideration with my client.
MR JUSTICE SILBER: Do you oppose that?
MR MCCULLOUGH: My Lord, I do oppose it, but I do not propose to elaborate my resistance.
MR JUSTICE SILBER: Can you elaborate, please?
MR MCCULLOUGH: My Lord, the terms of your Lordship's judgment were clear and unequivocal. It cannot be said that an appeal has any reasonable or realistic prospect of success. My Lord, secondly, the public interest argument does not apply. I was just turning up in order to remind myself of the actual terms of the rule in Part 52. My Lord, it is rule 52(3) which provides at paragraph 6:
"Permission to appeal will only be given where-
(a) the court considers that the appeal will have a real prospect of success, or
(b) there is some other compelling reason why the appeal should be heard."
My Lord, neither limb is, in my submission, satisfied. There is no real prospect of success in this appeal and there is no other compelling reason.
MR JUSTICE SILBER: Ms Morris, is there anything more you want to say?
MS MORRIS: No, my Lord.
MR JUSTICE SILBER: As I have expressed in my judgment, I have substantial admiration for the way the case was presented on behalf of the claimants, but the more I looked into the case as I prepared for my judgment the more convinced I became of the strength of the defendant's position, bearing in mind that this was of course a public law case and had to be looked at as against the public law background and not as an appeal on fact. I was satisfied that the claimant came anywhere close enough to the threshold required for either limb to obtain permission to appeal. Therefore, the consequence is that this application must be refused. Is that all we have to deal with?
MS MORRIS: My Lord, yes.
MR JUSTICE SILBER: Can you convey my thanks to the other members of your team who are not here today, both of you. They were a very great help, and I particularly appreciated the very useful written documents that you submitted to me. Thank you very much. The final version of the judgment will probably be ready some time this afternoon.