Case No: CO/1957/2006

Neutral Citation Number: [2006] EWHC 1338 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

 Thursday 15th June 2006

Before :

Mr Justice Collins
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Between :

	Pam SMITH	Claimant	
	- and -		
	North Eastern Derbyshire Primary Care Trust
-and-
The Secretary of State for Health	Defendant

Interested Party	

(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
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Ms Eleanor Grey & Mr Robert Lazarus (instructed by Leigh Day & Co) for the Claimant
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

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Judgment

Mr Justice Collins : 
1.	This claim seeks to overturn the decision of the defendant to appoint United Health Europe Limited (UHE) to provide general practitioner services in two villages, Creswell and Langwith, in north-east Derbyshire.  UHE is associated with United Health Group, an American based health care provider.  UHE was established in the United Kingdom in May 2004 and its main Director is a general practitioner who practises in Kingston upon Thames.  It will have to recruit GPs to provide the services in question.
2.	There are four ways in which a Primary Care Trust (PCT) can arrange for the delivery of general medical services to a local community.  It can provide them directly (which is what is now happening as a result of this claim since the contract with UHE has been stayed pending the outcome). This is called a PCTMS.   Otherwise, it can enter into a General Medical Services Contract (GMS) whereby it contracts with a medical practitioner, or partnership (see ss.28Q to 28W of the National Health Service Act 1977). GMS is a nationally negotiated contract.  It can enter into a particular contract which is locally negotiated.  This is known as a Personal Medical Services Agreement (PMS): and can be with a NHS employee or health care professional as well as with a medical practitioner or a partnership: see s.28D of the 1977 Act.  Finally, it can make use of the wide general provisions conferred by s.16CC(2)(b) of the 1977 Act which enables it to “make such arrangements for [the provision of primary medical services] … as it thinks fit, and may in particular make contractual arrangements with any person”.  The Department of Health has published guidance on the exercise of such powers, which result in what are called Alternative Provider Medical Services (APMS).  The guidance, published in May 2004, states:-
“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.
3.	The statutory provision which is central to this claim is s.11 of the Health and Social Care Act 2001.  This, so far as material, reads:-
“(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.”
4.	It is clear from all this that s.11 has a very wide application.  However, the language is somewhat imprecise.  When I asked counsel what the words ‘involved in’ added, I received no satisfactory answer.  I make it clear that I do not in the least blame counsel.  Mr Pittaway, Q.C. and Mr Herberg submitted and Ms Grey accepted that they could not mean that the public had to be parties to the making of any relevant decisions.  Thus ‘involved in’ really means no more than informed and able to express a view (which adds little to ‘consulted on’).  What is important is that the public must know what is proposed or what changes are to take place or how the services which affect them are to be operated and must have the opportunity, at least through a representative body, to comment on such matters.  Their views must be obtained.
5.	There are a number of statutory refinements which concern scrutiny of a PCT’s actions.  Section 7 of the 2001 Act provides that overview and scrutiny committees of local authorities (OSCs) should “review and scrutinise, in accordance with regulations …, matters relating to the health service … in the authority’s area”. Regulation 4(1) of the Local Authority (Overview and Scrutiny Committee Health Scrutiny Functions) Regulations 2002 (SI2002 No. 3048) provides:-
“… [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.
6.	Section 15 of the National Health Service Reform and Health Care Act 2002 introduced a further body which was to represent the public in relation to the activities of inter alia PCTs.  It provides, so far as material:-
“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.”
7.	It will, I think, be apparent from all this legislation that judicial review of decisions of the PCT based on allegations of a failure to comply with the requirements of s.11 should be unnecessary unless the relevant Patients’ Forum has failed to comply with its duty.  It is an unfortunate feature of this case that the claimant and others who support her claim were apparently unaware of the existence of the Patients’ Forum.
8.	The claimant lives in Langwith, an ex-mining village.  She has her own health problems but there are many who suffer respiratory problems having worked in the pit.  It is a deprived area and recognised as such.  Until some three years ago, a Dr Khan ran the GP practice which covered Langwith.  It was a branch of the main surgery at Creswell which is about 3 miles away.  Public transport between Creswell and Langwith is poor and taxis are expensive.  The service provided when Dr Khan was running it was satisfactory.  When he retired, his practice was taken over by a nurse and her husband Mr and Mrs Lodge, under a PMS contract with the PCT.  They were to employ doctors as needed.  A Patients’ Participation Group (PPG) existed for those who wanted to be involved.  The elected chairman was a Mr Pollard, who lived in another village served by the practice, and the claimant was a member. Meetings were held every one to two months.  These were attended by the Lodges but not by any of the GPs or, after the first meeting, by a representative of the PCT.
9.	By early 2005, concerns about the service provided by the Lodges at Langwith had grown to such an extent that in May a letter was written to Dr McShane, the Chief Executive of the PCT, on behalf of the Parish Council asking for a meeting to resolve the difficulties.  Not least of these was repeated vandalism of the surgery.  There was no reply to that letter or to a chaser sent in July.  Finally, on 15 September 2005 a final letter was written by the Parish Council in these terms:-
“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!”
10.	It was, to say the least, unfortunate that these letters were apparently ignored.  Dr McShane says the non-reply to the May and July letters was due to ‘an unfortunate administrative error’.  But it conveyed the impression that the PCT was not engaging with the Parish Council, of which the claimant was a member and which was raising matters of concern to the inhabitants of Langwith.  The PCT would have been expected to show some interest in seeing the survey referred to in the letter of 15 September 2005 which the PCT has no record of receiving.  Following the decision to engage UHE, which was announced on 23 December 2005, there was correspondence from the Parish Council.  In a letter of 19 January 2006, it referred again to the survey and made the point that local opinion was that the contract should go to local doctors who understood the needs of the inhabitants and that UHE was chosen ‘despite a number of local doctors expressing an interest in the contract’.  It pointed out the special nature of Langwith in that it suffered from high levels of social deprivation so that ‘the personal approach in all of the public services is of paramount importance’.  The letter also stated:-
“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.
11.	The failures by the Lodges led to a discussion between the Parish Council and a Dr Elizabeth Barrett, who was a partner in a neighbouring practice.  As a result, she developed a proposal which would enable her to take over the Langwith surgery and the Council in its turn offered land at a peppercorn rent for the construction of new facilities.  The PCT was aware of this, since Dr Barrett had discussed her ideas directly with the PCT.  In due course, the PCT served notice to terminate the Lodges’ contract on 24 October 2005.  They in fact ceased to provide services under the contract on 11 January 2006.
12.	There was a meeting with the PPG arranged for and held on 8 November 2005.  It seems that this was to discuss the details of the termination.  Those attending were required to sign a confidentiality agreement, apparently at the behest of the Lodges, and so no details of whatever was discussed could be disclosed. There is an unfortunate dispute about whether the claimant was invited to the meeting.  She did not attend.  She says she was unaware of it and certainly had not been invited to it.  Mr Pollard, who did attend, says that he personally telephoned her.  I am not in a position to resolve that issue.  All I can say is that, having regard to her obvious keen interest in what was to happen in relation to the provision of services to Langwith, it would be surprising that she did not attend if aware of the meeting.  There was no contemporaneous record of what was discussed.  Nor is it entirely clear to what extent the discussions looked to the future rather than dealt with the reasons for the termination.
13.	On 10 November 2005 the PCT initiated the tender process.  The document specified the relevant competencies, as the jargon has it, and the range of services to be delivered.  It was not advertised in the local press but was sent to national journals and to practices in the local and neighbouring PCTs.  The claimant was not aware of it until the outcome just before Christmas.  It attracted a surprisingly large number of applications, some 20 in all.  These were reduced to a short list of 7, one of whom withdrew so that 6 were interviewed.  Mr Pollard was, unknown to the claimant, a member of the interviewing panel.  Dr Barrett was not shortlisted.  A table provided by the defendant shows that her bid came ninth securing a total of 30 in the 11 competencies (out of a maximum 55).  UHE came fifth, securing 43.  This was before interview.  It then came top.  The defendant has offered to disclose to the claimant more details of the reasons why Dr Barrett’s bid was unsuccessful.  There was one other bid from a local practice which was shortlisted.  However, it only tendered for Creswell.  It was offered the opportunity  to tender for both villages, but withdrew its application.
14.	There is no evidence that the tender process which led to the award to UHE was other than fair.  The complaint is that the views of the claimant and those who shared her concerns were not properly taken into consideration and so there was no weight attached to them.  If that had happened, it is suggested that the outcome might have been different.  At the very least the PCT might have been the more reluctant to contract with UHE, a large impersonal business, rather than a local practice which could maintain the trust of the potential patients.
15.	While the language of s.11 is very wide and the guidance and observations of  ministers seek to emphasise the desire to involve patients and the public, both the defendant and the Secretary of State submit that the facts of this claim do not engage s.11.  It is said that the arrangements with UHE were merely the reprovision of services. Section 11 is not concerned with contractual arrangements so that a change in the nature of the contract does not of itself come within it.  Equally, a change of personnel does not; otherwise, the s.11 duty would arise every time a GP retired and a replacement had to be introduced in the practice.  That there must be a limit is clear and Ms Grey rightly accepted that the introduction of a new GP into a practice would not, for example, usually come within s.11.  In this case, she relies on the failure of the existing service and the resulting concerns of the patients, the range of options which were being mooted (in particular, the possibility of a split between Creswell and Langwith and the proposals of Dr Barrett) and the range of services identified for the future in the tender documentation.
16.	Section 11(1)(b) talks of proposals for changes in the way the services are provided.  It is submitted that those changes must be material so that a different form of contractual arrangement will not normally qualify.  It is also submitted that the proposals must be made by the PCT.  It is not sufficient that third parties propose something if the PCT do not take up those proposals.  The language in my view is wide enough to embrace changes of contractual methods.  What must be done to comply with the s.11 duty, if it applies, will depend on the circumstances.  Since it is clear that there is (and there certainly was in this case) a degree of public concern about the manner in which the service is to be provided and one is not necessarily regarded as indistinguishable in its effect from another, it seems to me that a s.11 duty may arise.  If it does, it can easily be discharged by, for example, informing the Patients’ Forum.  Since I gather a representative attends monthly meetings of the PCT, that should be no burden.  It will then be for the Forum to see whether any wider consultation or involvement is desirable.
17.	Proposals must be live in the sense that they are taken seriously by the PCT and may be acted upon.  If they are regarded as inappropriate and the PCT has no intention of acting upon them, a s.11 duty will not be triggered by their promotion by a third party.  But if a situation arises where changes which may fall within s.11 are under consideration, proposals which seek to deal with that situation may well trigger the duty even though they are not the preferred option of the PCT.
18.	Whether or not s.11(1)(b) applies, s.11(1)(c) is wider still.  Virtually any decision by the PCT in connection with the provision of health services or the manner in which they are delivered is capable of falling within s.11(1)(c).  However, there is, I think, force in the submission of Mr Herberg that the purpose behind s.11 is to ensure that patients’ views are obtained where decisions may make a material change to the services being or to be provided or may materially affect patients.
19.	Thus I accept that a change of personnel or of contractual terms or of the form of a contract may not of themselves be covered by s.11.  But the background is highly relevant.  The need to replace a failed service should mean that the reasons for the failure are addressed and that may well, as was the case here, lead to a need to consider whether any different arrangements to deal with any problems which have manifested themselves are required.  Thus public input may assist the PCT and will certainly help to allay concerns.
20.	I have no doubt that the circumstances of this case did give rise to the s.11 duty.  It can be said that any case where services have failed and must be replaced will amount to reprovision of those services.  That merely underlines the point that the label ‘reprovision’ does not give the answer in favour of the defendant and the Secretary of State.  For the reasons I have indicated, a failure is often likely to require a consideration of its causes and so whether changes are indeed needed.
21.	I have already touched on the nature of the duty and how it can be met.  It does not require formal consultation in all cases.  Ms Grey has never suggested that it does, although it seems to have been assumed that she had.  Where there is any doubt whether it can apply, the PCT would be sensible to assume that it does since it can in most cases easily be met through the Patients’ Forum.  Section 11 does not require that the arrangements made must secure direct involvement by users.  That would be impossible in most cases involving large numbers of such users.  It can be and will usually in cases such as this be done through representatives.  It will only be necessary to undertake a more formal and wider consultation exercise if the proposals are for major changes.  And it is always open to the Forum to make representations to the OSC in accordance with Regulation 7 of the 2003 Regulations if it believes that there has been insufficient consultation to comply with the s.11 duty.
22.	Ms Grey submitted that there was a continuing requirement to consider whether the s.11 duty applied.  This could arise at the tender stage or even later when, for example, the Barrett bid was not shortlisted.  I prefer to look at it on the basis that what happened later confirmed the application of s.11.  It is always possible that matters may develop in a way which means that the s.11 duty is triggered.  It may, for example, become apparent that material changes are needed.  A PCT must always be aware of this possibility.  But that will usually only arise where something unexpected occurs.  Here, the PCT should have appreciated from the outset that the duty was engaged.
23.	It was suggested, albeit somewhat tentatively, that in any event the duty under s.11 had been complied with because the necessary arrangements had been put in place.  The existence of the PPG and the meeting of 8 November coupled with Mr Pollard’s presence on the interview panel had achieved what s.11 required.  Making arrangements with a view to securing is not the same as securing.  The difficulty with that submission is that because the PCT believed that s.11 did not apply it did not make any arrangements in accordance with s.11 in relation to the new contract for services at Langwith and Creswell.  In any event, the meeting of 8 November was subject to confidentiality and so could hardly qualify as public involvement or consultation.  It is true that the PPG could have been used as a vehicle whereby the concerns were put to the PCT.  However, an attempt to raise concerns  did not seem to bear fruit because of the regrettable failure to respond to the letters from the Parish Council.  Accordingly, I cannot accept that there was de facto compliance.
24.	Delay is relied on by the defendant.  Since permission was granted by Davis J on 15 March 2006, delay is only relevant under s.31(6) of the Supreme Court Act 1981 so that detriment to good administration or prejudice to a person must be shown.  The claim was lodged on 3 March 2006. The decision under attack is that announced on 23 December 2005.  The claimant was unaware of the decision to tender, which took place on 10 November 2005, until Christmas time.  In any event, the decision of the House of Lords in R v Hammersmith & Fulham LBC ex p Burkett [2002] 1 W.L.R. 1593 suggests that time would not begin to run until the decision was made to contract with UHE.  If another route had been chosen which was acceptable to the claimant, no claim would have been needed.  There is always some prejudice arising from the time and resources spent in disputing a claim.  Here, the PCT has the added expense of providing the service itself while these proceedings are in being.  It is said that to put the matter out to tender again would be unfair to UHE since others would now know how to amend their bids.  UHE has not made any observations, and so I cannot assume anything in their favour.  In any event, if other better bids result, that will be advantageous for the PCT and the patients.
25.	However, I do not accept that there has been undue delay.  Since she became aware of the decision, the claimant has through her solicitors acted reasonably expeditiously, bearing in mind the need for a pre-action protocol letter and the possibility that the need to comply with s.11 might have been accepted.
26.	There was an alternative remedy.  Judicial review is always regarded as a last resort.  I am, I am afraid, unimpressed by the contention that the claimant and, presumably, those advising her were unaware of the existence of the Patients’ Forum.  No attempt has been made to seek to persuade it to intervene.  Ms Grey suggests that that remedy would have taken a great deal of time to pursue.  If the Patients’ Forum had taken the matter up on the claimant’s behalf, I find it difficult to believe that the PCT would have gone ahead regardless.  But, if it did or if the Forum did not accept that s.11 was in play, the remedy of judicial review could then have been pursued.  I think that there is force in Mr Herberg’s submission that the claimant should have tried in that way to avoid judicial review.
27.	I have to ask myself whether, notwithstanding the failure to comply with s.11, relief should be granted.  I very much doubt whether, if the PCT had received and considered the claimant’s views, it would have reached a different decision.  There is no reason why UHE should not provide the sort of service the claimant wants and these proceedings should at least have alerted the PCT to the need to ensure that the contractual terms are such as to achieve what is wanted.  These considerations coupled with the existence of an alternative remedy which could have avoided these proceedings persuade me that it would not be appropriate to grant any relief.
28.	I suppose the moral of this tale is that PCTs should assume that s.11 applies if there is any doubt since the Patients’ Forum can so easily be used to comply with the duty.  That I am sure is what Parliament intended.  It will ensure the necessary patient involvement and will, it is hoped, avoid the real and understandable dismay at the way in which the PCT dealt with this situation.  The decision may still be unpalatable but at least the public’s views will have been taken into account.
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	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".
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