QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Pam SMITH
|- and -
|North Eastern Derbyshire Primary Care Trust
The Secretary of State for Health
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Pittaway, Q.C. & Mr Andrew Post (instructed by Beachcroft LLP) for the Defendant
Mr Javan Herberg (instructed by The Solicitor, Department of Health) for the Interested Party
Crown Copyright ©
Mr Justice Collins :
"APMS offers substantial opportunities for the restructuring of services to offer greater patient choice, improved access and greater responsiveness to the specific needs of the community. It will provide a valuable tool to address need in areas of historic under-provision, enable re-provision of services where practices opt out, and improve access in areas with problems with GP recruitment and retention.
PCTs can enter APMS contracts with any individual or organisation that meets the provider conditions set out in Directions. This includes the independent sector, voluntary sector, not-for-profit organisations, NHS Trusts, other PCTs, Foundation Trusts, or even GMS and PMS practices. If PCTs contract with GMS / PMS practices via APMS, the practice would hold a separate APMS contract alongside their GMS / PMS contract.
The PCT will want to ensure that it has transparent, non-discriminatory procedures in place for selecting a contractor, in order to encourage competition."
The proposed arrangement with UHE is an APMS. So far, this use has been relatively common in relation to provision of out of hours services, but it has not as yet been used to any great extent for primary services. There are those who believe that it is an undesirable introduction of private medical services into the NHS. But that cannot be a matter which is to be considered in deciding whether the appointment of UHE was appropriate in this case.
"(1) It is the duty of every body to which this section applies to make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on –
(a) the planning of the provision of those services,
(b) the development and consideration of proposals for changes in the way those services are provided, and
(c) decisions to be made by that body affecting the operation of those services.
(2) This section applies to-
…(b) Primary Care Trusts …"
The explanatory notes state that s.11 confers a 'new statutory duty' to "make arrangements with the aim of involving patients and the public in the planning and decision making processes of that body, in so far as they affect the operation of the health services for which the body is responsible". The Department of Health has issued policy guidance on s.11. This states:-
"'Involving and consulting' has a particular meaning in the context of s.11. It means discussing with patients and the public their ideas, your plans, their experiences, why services need to change, what they want from services, how to make the best use of resources and so on. It is more about changing attitudes within the NHS and the way the NHS works than laying down rules for procedures.
What is important is that involvement and consultation is adequate both in terms of time and contract and appropriate to the scale of the issue being considered. Part of the involvement process may be to discuss with stakeholders (sic) the most appropriate arrangements for any further involvement. For example it may become clear that
+ more effort needs to be made to involve the harder-to-reach groups that may be affected by the proposed change or more information needs to be given; or
+ a formal consultation process lasting for a set period of time is not necessary. …
Patient and public involvement is central to developing any organisation. NHS organisations must recognise and value the benefits of listening and responding to patients and recognise that the patient's experience is the catalyst for doing things differently to improve the way services are delivered.
Real patient and public involvement is not about ticking boxes, it is about NHS organisations developing constructive relationships, building strong partnerships and communicating effectively. For patients' experience of health services to really improve, NHS staff will need to have ongoing and meaningful dialogue with them, their carers and the public about improving and developing services …
The new duty in the continuation of a process that will strengthen accountability to patients and the public and make sure there is transparency and openness in decision making procedure. We must develop and adapt health services around the needs of patients and the public which will build trust and confidence between local communities and the NHS."
"… [W]here a local NHS body has under consideration any proposal for a substantial development of the health service in the area of a local authority, or for a substantial variation in the provision of such service, it shall consult the OSC of that authority."
The duty therefore only arises where there is a proposal for a substantial change. An OSC can complain to the Secretary of State if it is not satisfied that adequate consultation has taken place (Regulation 4(5)). I mention those provisions only because they were referred to in argument to draw the distinction between the duty to consult in s.7 and the duty to make arrangements with a view to securing involvement and consultation in s.11 and to make the point that this claim did not concern changes or proposals which were substantial. It has not been suggested that the duty under s.7 arises.
"15(1) The Secretary of State shall establish a body to be known as a Patients' Forum …
(b) for each PCT
(3) A Patients' Forum must-
(a) monitor and review the range and operation of services provided by, or under arrangements made by, the trust for which it is established,
(b) obtain the views of patients and their carers about those matters and report on those views to the trust,
(c) provide advice, and make reports and recommendations, about matters relating to the range and operation of those services to the trust,
(d) make available to patients and their carers advice and information about those services, …
(f) carry out such other functions as may be prescribed.
(5) If, in the course of exercising its functions, a Patients' Forum becomes aware of any matter which in its view –
(a) should be considered by a relevant OSC, the Forum may refer that matter to the OSC."
Section 16 sets out various additional functions of a Patients' Forum. These include representing in particular to OSCs the views of members of the public about matters affecting their health (s.16(1)(b)). S.16(3) and (4) I should set out. They read:-
"(3) it is also the function of a PCT Patients' Forum-
(a) to promote the involvement of members of the public in the area of the Trust in consultations or processes leading (or potentially leading) to decisions by those mentioned in subsection (4), or the formulation of policies by them, which would or might affect (whether directly or not) the health of those members of the public,
(b) to make available advice and information to such members of the public about such involvement,
(c) to advise those mentioned in subsection (4) about how to encourage such involvement (including, in the case of bodies mentioned in subsection (4) to which section 11 of the Health and Social Care Act 2001 (c.15) applies, advising them how to comply with the requirements of that section in relation to the area of the Primary Care Trust), and
(d) to monitor how successful those mentioned in subsection (4) are at achieving such involvement.
(4). Those referred to in subsection (3) are-
(a) Strategic Health Authorities whose areas include any part of the area of the Primary Care Trust,
(b) the Primary Care Trust itself,
(c) NHS trusts which provide services to patients in the area of the Primary Care Trust,
(d) other public bodies, and
(e) others providing services to the public or a section of the public."
In addition, Regulation 7 of the Patients' Forum (Functions) Regulations 2003 (2003 No.2124) provides:-
"7(1) Where a Patients' Forum considers that the … PCT … is not carrying out its duty under s.11 of the 2001 Act, or is not doing so in a satisfactory manner, it may refer the matter to the relevant OSC …
(2) A Patients' Forum shall not refer any matter under Paragraph (1) until it has made all reasonable efforts to resolve the matter with the … PCT concerned and it considers that those efforts have failed."
"MEDICAL FACILITIES – WHALEY THORNS/LANGWITH
The Parish Council has become increasingly concerned about the poor medical facilities available to the residents of Langwith. The result is that many parishioners travel considerable distances to health centres or do not receive the treatment they need.
With the support of the Scarcliffe Parish Council, a survey was recently conducted in the area which demonstrated that there was overwhelming support for the establishment of new and comprehensive medical facilities. Any steps which are taken towards achieving this goal are supported wholeheartedly by elected members and I have been asked to convey this to you.
The Parish Council is disappointed that neither the PCT, local health centres nor statutory bodies have shown any sign of wishing to improve the current situation. I attach for your information an article which recently appeared in a local newspaper.
I look forward to receiving your response to what is becoming an increasingly urgent problem in the area."
The Clerk to the Council who signed the letter wrote this comment on it:-
"There was no response to this letter! There never is!"
"Moreover the Council is concerned on a wider front that it appears, by offering the contract to the company named, it is one more step towards the privatisation of the NHS."
That is not a relevant consideration. APMS is a recognised manner in which GP services can be provided. However, it is a relatively novel approach, at least for a mainstream provision. One can understand the concerns, particularly the fears that there would be a lack of continuity of care by resident GPs. This concern to an extent arose when the Lodges were in charge. But contractual terms are capable of ensuring that there is such continuity. Nevertheless, what happened underlines the desirability of information to the public and the knowledge that their concerns have at least been recognised. Otherwise, as here, there is a strong and entirely understandable feeling that their concerns have not been properly taken into account. However, if s.11 did not in the circumstances apply, there was no legal obligation upon the PCT to do more than it did.
MR JUSTICE COLLINS: This matter sought to overturn the decision of the United Health Europe Ltd to provide general practitioner services in two villages in north-east Derbyshire. For the reasons set out in the judgment, a transcript of which has been available to the parties and which I hand down, I shall dismiss this claim. I should say that I have been satisfied that there was a failure by the Primary Care Trust to comply with Section 11 of the Health and Social Care Act 2001 in that there was no proper involvement or consultation with those who were to be affected by the decision. Essentially I have decided that despite that failure to comply with Section 11 there was an alternative remedy, and judicial review was therefore not the appropriate route and in addition that in all the circumstances set out in the judgment the failure would not have been likely to have made any difference.
MR LAZARUS: The claimant would submit in this case that we should recover certainly the lion's share of our costs in this application. We have won on every issue save for the - - - - -
MR JUSTICE COLLINS: Save for the one that matters.
MR LAZARUS: Indeed but I would invite you to look at the time spent on the various issues both in terms of preparation prior to the trial and the time spent during the hearing. In particular the alternative remedy was essentially, with respect, a bit of an afterthought. In particular the defendant did not raise that issue save in its skeleton argument.
MR JUSTICE COLLINS: It was raised by the Secretary of State rather than by the defendant, as I recall.
MR LAZARUS: Indeed. Most of the costs were involved in other issues, most notably whether or not Section 11 was engaged.
MR JUSTICE COLLINS: Indeed.
MR LAZARUS: It is to be noted that the defendant did not really concede any points. To a certain extent the defendant had maintained throughout that even if Section 11 had engaged there had been a consultation of sorts by reason of the meeting on 8 November, which for obvious reasons you found was not in any way a consultation. Indeed you have indicated the failure.
MR JUSTICE COLLINS: I am conscious that in the old days if I had read out this judgment you would have been expecting, until the last moment, that you had won. It is very galling. It has happened to me in the past. You are right; on the main issues you were successful.
MR LAZARUS: I would invite you to take an issues-based approach to assessing cost in this matter. I would submit that in all the circumstances the claimant is entitled to 90 per cent of her costs in this action.
MR PITTAWAY: It is not entirely accurate to say that the issue of alternative remedy was raised at the last moment. Reference to Patients' Forums and the relevant conditions were set out in the first letter that those instructing me wrote in response to the claimant's solicitor; so the issue was flagged up there although I accept that in terms of the skeleton argument it was a point that Mr Herberg took.
MR JUSTICE COLLINS: It was a point that was live.
MR PITTAWAY: It was live throughout. At the end of the day the claim has failed. The claimant in this case is legally aided and it is unlikely that - - - - -
MR JUSTICE COLLINS: That should not make any difference to my approach.
MR PITTAWAY: The PCT obviously also - if ordered to pay the costs - would have to find the costs from funds that it would otherwise spend - - - - -
MR JUSTICE COLLINS: The same applies for legal aid.
MR PITTAWAY: What I would say is that in this case the appropriate order would be no order as to costs.
MR JUSTICE COLLINS: Have you observations on costs?
ME HERBERG: I think no one seeks costs against me.
MR JUSTICE COLLINS: I assume you neither seek nor extend - - - - -
ME HERBERG: I stay neutral on this particular issue.
MR JUSTICE COLLINS: That is what I would expect. I think that there is considerable force in Mr Lazarus' submission that the main bulk of the hearing was taken up with issues on which he has been successful. There is no reason in principle why, even if a claim fails, there should not be at least a partial order for costs in favour of the loser. In my view, this is such a case. What I propose to do in all the circumstances - bearing in mind of course that in the end the claim has failed - is to order the defendants to pay three-quarters of the claimant's costs which will obviously be subject to detailed assessment if not agreed. You will need the usual order, Mr Lazarus, will you not, the usual detailed assessment order for legal aid purposes?
MR LAZARUS: I am grateful. There is one further point which is that we wish to seek permission to appeal the decision. We respectfully submit that the effect of the judgment has been to widen the scope of what is meant by alternative remedy.
MR JUSTICE COLLINS: You do not want to appeal against the - - widen the scope of alternative remedy? I am not sure I have widened the scope of anything. I have just indicated that there is another route.
MR LAZARUS: In my submission the issue is whether there is a suitable and effective alternative remedy. In my submission the Patients' Forum does not represent such a remedy. My first point is that in this case what has primarily been in issue is a point of law; it has been the construction of the ambit of Section 11.
MR JUSTICE COLLINS: You won on that. You do not want to appeal against that, do you?
MR LAZARUS: No. The issue really is whether that was an issue which the Patients' Forum could have resolved. The defendant has maintained throughout that Section 11 did not apply in these circumstances. That was a point of view supported by the Department of Health.
MR JUSTICE COLLINS: The point is that the Patients' Forum could have been brought in. If the Patients' Forum had decided that Section 11 did not apply and they were not going to do anything then there is your scope for judicial review. On the other hand, I suspect that if that had happened the Patients' Forum would have said "Look, wait a minute, should we not take steps?" Unless they were exceedingly foolish, the PCT would have realised that the sensible thing to do would have been be to involve - whatever that means - the public in a way that they did not. Of course it is not only alternative remedy that has affected my decision; it is also the view that it would not have made any difference - when you look at all the circumstances - had they applied Section 11, had they undertaken the sort of consultation or the sort of involvement that Section 11 requires. It is very flexible. There is no suggestion - and you did not suggest for your part - that formal sort of consultation was required in all cases depending on the circumstances. You have not lost only on that ground.
MR LAZARUS: I was going to address you on the subject of whether or not it made a difference shortly. The issue is not whether it is likely that had the - - - - -
MR JUSTICE COLLINS: I agree it is "could" rather than "would".
MR LAZARUS: I am sorry, I am mumbling. In relation to the Patients' Forum, my submission is that the point is that the Patients' Forum has no teeth. It has no power to compel the PCT to do anything, and the power to refer to the Secretary of State arises only under Section 7.
MR JUSTICE COLLINS: So it is a pointless body in reality. Whatever Parliament may have decided, it was all a bit of a waste of time.
MR LAZARUS: It is perhaps difficult to suggest that the PCT would have sat up and listened if the Patients' Forum suggested that they do something, given the very robust answer they had maintained in all the pre-action correspondence. The issue, in my submission, is that an alternative remedy is - is there a body that can adjudicate the issue between the parties? In my submission, they cannot. Secondly if it did adjudicate the issue of the claimant, could it compel the defendant to do anything? Again the answer is no. Given that this is an issue of law and a body with no teeth, in my submission, there was no alternative remedy.
MR JUSTICE COLLINS: What now is the conceivable interest in prolonging this matter? Surely what matters is that decent and proper general practitioner services are provided for your client and those who live in the village. As I indicated, it is quite plain that a contract can and should, and I hope will, provide that they have to produce or have to employ practitioners who will give the proper service. It is not only a question of a whole lot of locums effectively but it will be a proper provision of services. If that is done your clients will not suffer. If it does not work, then no doubt the PCT will have to reconsider. As I say, there has been a lot of public money already spent on this. The PCT is spending more money which it can ill afford and which will, in the end, come out of the funds that are otherwise available for health care for your clients. Whether or not you can persuade the Legal Services Commission that there is a point to take further, I do not know; I would doubt it. It seems to me that at this stage of the game it is a pointless exercise.
MR LAZARUS: I appreciate that the continuance of these proceedings would be in the circumstances regrettable. The issue is not whether the United Health Europe is able to provide the kind of service that the claimant wants but whether the UHE was the best and most appropriate option that was available to the local population at the time.
MR JUSTICE COLLINS: That was a matter for the PCT to decide, not your clients or anyone else to decide. They should have decided it taking account of representations and views of the public at large. You are not going to change the decision merely because you think it is not the best, unless you can show somehow that there is a viable alternative. I do not know whether you have yet seen the more detailed reasons which you were offered as to why the Barrett application was not considered to be one which would fulfil all the necessary criteria. On the evidence before me there was good reason, in the sense that that bit did not meet the competences - whatever that awful word is.
MR LAZARUS: It is my understanding that a meeting between Dr Barrett and Dr McShane is scheduled for next week and there is to be a public meeting at which the PCT will explain their position. But that does not really change - - - - -
MR JUSTICE COLLINS: Is the die cast now?
MR PITTAWAY: As I understand it, it is, yes.
MR JUSTICE COLLINS: I wanted to make sure there was no scope for any reconsideration.
MR PITTAWAY: No.
MR LAZARUS: I can see which way my application is going.
MR JUSTICE COLLINS: I am not giving you leave to appeal because I do not think there are any grounds upon which I can properly do so. You know what the criteria are. I say I do not think there is any point that requires me to give you leave to appeal. Of course you have the right to apply to the Court of Appeal. I am not preventing you from appealing. I am merely saying if you want to go further you must get the leave of the Court of Appeal. I am not stopping you appealing.
MR PITTAWAY: For the record, my learned friend is right that there is a meeting scheduled between Dr McShane the Chief Executive and Dr Barrett next week with a public meeting to follow.
MR JUSTICE COLLINS: To explain this.
MR PITTAWAY: As I indicated on the last occasion, to explain to the patients why the decision was reached in the way it was.
MR JUSTICE COLLINS: That at least is something.
MR LAZARUS: There is nothing further.
MR JUSTICE COLLINS: We have to fill in a piece of paper which is supposed to indicate why we are refusing leave to appeal. I shall put "see transcript".