England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		8th June 2007

1. MR JUSTICE BENNETT: F is a seven year old boy who suffers from severe major neurone disorder. He lives with his parents in Rochdale. He has to use a wheelchair and experiences acute seizures which could last up to a period of 15 days. If a seizure occurs, his family administer medication. If his condition does not stabilise within five minutes, he has to be taken to hospital which, for him, is the Accident and Emergency Department of the Rochdale infirmary. According to the statement of F's father of 6th December 2006, filed in these proceedings, that takes about two minutes by car and he can there be given intravenous treatment. His father goes on to say that, if he had to go to other hospitals in the North East Manchester area, it would take significantly longer and might imperil F's well-being. According to the letter of 17th January 2007 from Dr Odeka, the Divisional Medical Director of the Women and Children's Division, between August 2003 and November 2006, F was admitted to the Children's Ward of the Rochdale Infirmary on five occasions. On all occasions, no active resuscitation was needed.
2. On 14th September 2006, the Joint Committee of the Primary Health Care Trusts of Bury, North Manchester, Heywood and Middleton, Oldham and Rochdale reached a provisional decision to adopt "Option 1" out of four options. Each of the constituent PCTs opted for Option 1. That decision was confirmed by the Joint Committee at its meeting on 5th January 2007.
3. Under each of the four options, Rochdale would lose its Accident and Emergency department but would become a "locality hospital". That means, according to the glossary of the public consultation document issued in January 2006, as follows:

"A locality hospital is a brand new type of facility offering an exciting range of services in one location. It is larger than a traditional community hospital, but smaller that a traditional district general hospital.

Its staff would care for patients with common conditions who need routine procedures. They carry out the usual range of tests such as x-rays, ultrasound and others. But the hospital also offers a range of other services not usually provided from a single site. This includes out-of-hours services, dental services, mental health services, social care services and voluntary services.

At each locality hospital, there would be an urgent care centre. An urgent care centre is a facility which manages patients with accidental injuries and medical emergencies but who do not need intensive or specialist care."

4. In the same document, the meaning of an urgent care centre is this:

"A urgent care centre is a facility which manages patients who arrive at a locality hospital with accidental injuries and medical emergencies, but do not need intensive or specialist care.

Approximately 85% of the work which currently goes through a typical accident and emergency department could be dealt with at this service."

5. The decision of the Joint Committee in September 2006 means, as the claimant and the defendants agree, a closure of the Accident and Emergency Department of the Rochdale Infirmary. However, the Accident and Emergency Department will be replaced by an urgent care centre. The aspiration will be to safely see at the urgent care centre as many patients who are currently managed within A&E and the walk-in centre as possible. It is likely that, out of existing A&E walk-in centre attendances, 85 per cent will be managed within the urgent care centre. The urgent care centre will be staffed by doctors and nursing staff trained to appropriate competency levels with clinical leadership and management by consultants in emergency medicine.
6. Nevertheless, the September decision of the Joint Committee must have alarmed the claimant's parents and indeed many other members of the public in Rochdale. The claimant's parents consulted solicitors. The result was that, on 13th December 2006, judicial review proceedings were begun against the Joint Committee and the five PCTs involved, impugning the provisional decision of 14th September 2006. The relief sought are orders quashing that decision and requiring the defendants to retake the decision lawfully, after full public consultation, as to all options for service provision including retention of the A&E Department at the Rochdale Infirmary.
7. The grounds specified in the claim form were threefold. First, in reaching its decision, the defendants failed to comply with the duty of public consultation imposed by section 11(2) of the Health and Social Care Act 2001. Second, the decision of 14th September 2006 was perverse in that no reasonable committee would have made the decision it did based on the information before it. Third, Article 2 of the European Convention on Human Rights was engaged and the defendants, by deciding to close Rochdale A&E, were in breach of Article 2 in relation to the claimant.
8. As provided for in the Civil Practice Rules Part 54, the application for permission to bring judicial review proceedings was first placed before a High Court judge to decide that matter on paper. On 13th March 2007, Walker J refused permission. In refusing permission, he observed as follows:

"A. You say that consultation was flawed because 'no change' was not put forward as an option. There was no obligation to do so. Paragraph (7) of your grounds seems to envisage some sort of preliminary consultation about what will eventually be the subject of formal consultation. There was no obligation to do that either. The full extent of the defendant's obligations is correctly set out at paragraph (6) of your grounds. For the reasons given in the defendants' summary grounds there is no arguable basis for saying that the defendants failed to comply with their consultation obligations.

B. The decision you seek to challenge involves matters of medical, managerial and financial judgment which are for the defendant and not for the court. It was well within the bounds of reasonableness.

C. Your final proposed ground of challenge is a failure to comply with article 2 of the Convention. I can see no arguable basis for this proposed ground. I leave on one side the question whether the Convention requires the state to provide medical treatment. If F's home is too far away from an Accident & Emergency Department, he may have to live nearer to an Accident & Emergency Department. The Convention cannot, even arguably, require such departments to be located within a few minutes' travelling time from the residence of particular patients."

9. The claimant was dissatisfied with that decision and, as he was entitled to do, gave notice of renewal for permission to apply for judicial review. In his notice all three grounds were pursued. However, at the beginning of his submissions, Mr Kelly QC, for the claimant, indicated that he abandoned the second and third grounds but maintained that there had been no proper or adequate consultation.
10. Yesterday I heard submissions from Mr Kelly and Ms Richards for the defendants. Each took me through extensive documentation. I am grateful to them for their assistance and their submissions. I have reflected overnight on whether I shall grant or refuse permission. The test of whether permission should be the granted is conveniently set out at paragraph 54.4.2 of Volume 1 of the Civil Procedure, ie the White Book. It is that permission will only be granted where the court is satisfied that there is an arguable case that a ground for seeking judicial review exists which merits full investigation at a full oral hearing of all the parties and all the relevant evidence. In my judgment, after anxious consideration, I have come to the conclusion that the claimant has failed to satisfy that test and thus the proceedings will have to be dismissed. I shall now explain why I have reached that decision, which I recognise will come as a great blow to the claimant and his family and to the public in Rochdale who are, most understandably, concerned about the decision of the Joint Committee and its perceived implications.
11. The applicable law is not in dispute between the parties. Section 11(2) of the 2001 Act provides as follows:

"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."

12. In R v Brent London Borough Council, ex parte Gunning and others [1986] 84 LGR 16,8, Hodgson J accepted the submissions of Mr Sedley QC, as he then was, at page 189, where he said:

"Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, to which I shall return, that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."

13. That formulation was approved by the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan [2000] 2 WLR 662, see paragraph 108.
14. Ms Richards cited to me a decision of Wilkie J, Sardar and Others v Watford Borough Council [2006] EWHC 1590 (Admin). During the course of his judgment, the judge said at paragraph 29 as follows:

"In my judgment, having had regard to the totality of the evidence, the Council on 5 September took a decision in principle to de-limit. Further, in my judgment, the policy of delimitation, by virtue of that decision, ceased to be a policy which was at the formative stage. The description 'a formative stage' may be apt to describe a number of different situations. A Council may only have reached the stage of identifying a number of options when it decides to consult. On the other hand it may have gone beyond that and have identified a preferred option upon which it may wish to consult. In other circumstances it may have formed a provisional view as to the course to be adopted or may "be minded" to take a particular course subject to the outcome of consultations. In each of these cases what the Council is doing is consulting in advance of the decision being consulted about being made. It is, no doubt, right that, if the Council has a preferred option, or has formed a provisional view, those being consulted should be informed of this so as better to focus their responses. The fact that a Council may have come to a provisional view or have a preferred option does not prevent a consultation exercise being conducted in good faith at a stage when the policy is still formative in the sense that no final decision has yet been made. In my judgment, however, it is a difference in kind for it to have made a decision in principle to adopt a policy and, thereafter, to be concerned only with the timing of its implementation and other matters of detail. Whilst a consultation on the timing and manner of implementation may be a proper one on these issues it cannot, in my judgment, be said that such a consultation, insofar as it touches upon the question of principle, is conducted at a point at which policy on that issue is at a formative stage."

15. Mr Kelly, in his reply, did not seek to controvert those dicta.
16. Mr Kelly submitted that, during the course of the consultation, the option of keeping Rochdale's Accident and Emergency Department fully open was not considered and/or was not considered adequately. There was no or no adequate consultation of the public about keeping the Rochdale A&E open. By either January 2006, when the former consultation document was published in the public domain, and/or by 14th September 2006, the defendants, it was submitted, had shut its collective mind to considering whether Rochdale A&E should be kept open. The option of "doing nothing" was not put out for public consultation.
17. Ms Richards submitted that there was a very extensive consultation process, involving the public at every stage from the moment it began in July 2004. It was comprehensive, extensive and fully complied with section 11 of the 2001 Act and the dicta of Hodgson J to which I have referred. Paragraph 30 of the defendant's summary grounds of defence neatly summarises the defendants' position:

"There is no basis for any claim that the Joint Committee approached its decision making with a closed mind. The Defendants consulted on specific options, with one option identified as a preferred option, but with an open mind as to whether to adopt any of the options or some other option. Concerns and queries relating to the proposal for closing the accident and emergency service at Rochdale Infirmary were raised during the consultation process and were fully considered by the Joint Committee. It was always open to the Joint Committee to reject any of the preferred options."

18. The population served by the defendants currently receive acute hospital services from the Pennine Acute Hospitals NHS Trust which consists of four main hospital sites, namely Royal Oldham, Rochdale Infirmary, North Manchester General Hospital and Fairfield General in Bury.
19. In the summer of 2004, the North East Sectors PCTs published a document "Emerging investigation for future health services". In its foreword it said that a review was needed as to how to provide health and social care services throughout the area. The document said that it was recognised that, while some core services would be provided in every hospital, some specialist services are best provided from fewer sites to enable high quality and safer provision. The health needs of the population and services could be grouped into three broad levels, namely level one, those at a lower risk of illness who access general practitioners and pharmacies et cetera; level two, ie those who need frequent monitoring; and level three, those who comprise a relatively small number of patients who might need specialised procedures and treatments. Level three services would be provided at hospitals but not all the services would be provided at every hospital site. Some specialist services might be provided outside the locality. The document was to provide the starting point for public discussion with staff and other stakeholders and including, most importantly, the general public.
20. In January 2005, a leaflet was published entitled "Your chance to have a say". It encouraged feedback from patients and the public. It put forward very general suggestions. Part of the document, which can be seen at page 27 on the left-hand side, stated that each hospital site served about 190,000 people and had medical teams to cope with the workload. However, teams of this size, it was said, were now too small to provide a 24-hour medical cover while meeting the European "Working Time" Directive. It was said that small teams struggled to supervise and educate doctors in training and it was generally said that challenges were faced.
21. Attached to that document was a response form from members of the public to make their views known.
22. In January 2005 also, a Clinical Reference Group (CRG) was established, made up of the five lead general practitioners of the PCTs and the Medical Director of Pennine Acute Hospital NHS Trust to ensure the input of healthcare professionals. Working alongside the CRG was the Patients Council, which made sure concerns were heard and taken on board throughout the process of consultation. On 16th February 2005, an External Reference Group made up of members of the community was established whose purpose was to scrutinise the consultation process.
23. A number of clinical workshops were undertaken. With over 500 healthcare professionals, including 100 consultants. Key messages from the workshops are said to include the conclusion that emergency medicine would best be delivered at fewer sites.
24. In June 2005, the University of Salford published its valuation of the public response. It was quite apparent, said the University, that:

"Access and accessibility was one of the most frequently cited issues and concerns that emerged from responses."

There were, it said, many concerns raised about maintaining closure and the need for more services which focused on hospitals closing, the need for more wards and maintaining existing services.

25. The nature of the consultation with patients, the public and health care professionals came together in a document published in July 2005 headed "Healthy Futures Programme - Clinical Discussions on Future Models of Care". Ms Richards submits that is this is an important document.
26. The document invited the public to comment on the ideas expressed therein so that more detailed proposals could be developed and issued. At page 79 the "drivers for change" are described, which included delivering safe services and developing centres of excellence. Initial results indicated the people's priorities, see page 82, which put "safe services" at the top.
27. At page 84 is an important part of that document, namely paragraph 5.3. It starts with "Services and sites":

"Given the aim to move services from secondary care to primary and community provision where practical and clinically appropriate, the Clinical Planning Teams workshops had to consider how the remaining hospital services should be provided and configured between sites. Although there are different considerations to be taken into account for each work stream, using the principles for reconfiguring services, some common issues have emerged in relation to strategic choices about the future of hospital sites. Three main options were considered by clinicians. Their views on each are summarised below:

• The first was to maintain the current configuration where most clinical services were provided on all four hospital sites ... This option was therefore not considered to be viable.

• The second was to transfer all hospital sites to a single large hospital, shutting all existing hospitals...

• The third option was for the redistribution of clinical services across the existing hospital sites with the aim of combining the provision of specialities and creating centres of excellence with a critical mass of both staff and patients...

The next sections summarise the proposed configuration of inpatient and service bases for main clinical services. The location of services on individual sites has not yet been identified.

Feedback to this document will help inform the criteria for determining the location of future specific services. The full proposals resulting from this stage will undergo formal public consultation in the autumn and will include the proposed location of specific services and the reasons behind the proposals."

28. At page 85 the Accident and Emergency services were discussed. As to the existing service, the advantage of retaining it was seen as "good local access" but the disadvantage was put in this way:

"This system is difficult to sustain because specialist staff are spread thinly across the four sites. The size of some of the units means that they are more susceptible to temporary closure if staff are dealing with peaks in activity. Because of the distribution of specialist staff, some patients are taken initially to one A&E unit but then have to be transferred to another site for treatment."

29. Three options were put forward. First, the four sites would maintain its existing services but severe trauma patients would be transferred to two sites. Second, there would be new service models for all four sites and each would retain its Accident and Emergency department. Third, the services would be maintained on three sites and urgent care would be provided on a fourth site building on primary and community services, including minor injuries and walk-in services on the fourth site. That was the option that was ultimately adopted on 14th September 2006. The document went on to say:

"These potential options demonstrate the three main models that have been discussed. There are a number of variations to each which we will have to consider, and discussion on these points continues."

30. Paragraph 5.5 of that document is headed "How will we choose the location of hospital services?". The selection criteria was set out which included anticipated feedback from the public as to its ranking of the issues, such as safety and access, demographic factors, clinical linkages and strategic focus and estates issues.
31. A response form with questions was provided which enabled the public to comment on the document as widely as any member of the public wished.
32. The CRG then produced options which were subsequently identified in the formal consultation paper. Rochdale Infirmary was identified as a potential "locality" hospital because it had the smallest catchment population of the four hospitals, the fewest number of acute, medical and surgical admissions, the fewest number of beds, the smallest site with the least potential for expansion and the least impact on patient flows to hospitals outside the North East Greater Manchester area.
33. Taking account of the public engagement feedback on the site selection criteria and the views of the planning teams, the University of Salford was asked to analyse the responses from the public, professionals and staff relating to the criteria. The CRG and the Patients Council were then asked to weight the criteria. The weighting exercise was validated, it is said, by a mini survey of 108 members of the public who were selected randomly from high street surveys across the North East of Greater Manchester. The Clinical Reference Group was given the task of scoring each option under the agreed weighted criteria. The options with the highest score was Option 1, which resulted in this option being recommended by the Clinical Reference Group. In parallel, a Health Impact Assessment, which is a process for identifying both positive and negative impacts for proposed development based upon a range of evaluated evidence, was undertaken, involving detailed analysis of the workshop, which was attended by about 300 people. This resulted in the production of a written assessment report in August 2003.
34. On 20th October 2005, the Joint Committee met. It was held in public. A critical part of the minutes is at paragraph 4 under "Options and Criteria for Site Selection Process". Mr Wilders, the Director of the Strategic Planning, played a major part in the discussion. The relevant parts of the minutes read as follows:

"The criteria used to evaluate the options had been generated by the public engagement process stemming from the Your Chance To Have Your Say and Healthy Futures discussion exercises. The criteria had been developed via the Clinical Reference Group, and then the Patients council had undertaken a weighting exercise which was also done by the Clinical Reference Group.

[Mr Wilders] stated that there were five options presented each with its own score for people to see how each option had been arrived at.

(1) Option 1 - do nothing

(2) Option 2 - move to a single site

(3) Option 3 - acute medicine and surgery 3 sites

(4) Option 4 as with Option 3 - acute surgery at one site, and acute medicine at two sites

(5) Option 5 - single site similar to option 2, but would depend on the bigger picture of what happens in Greater Manchester."

Later on in the minutes, the discussion was recorded as follows:

"The Making It Better options had not been taken into account at this stage as the information is not available. [Mr Wilders] advised that Option 3 would perhaps be the best option.

[Mr Wilders] advised that options 2 and 5 had most clinicians support, but pointed to the timescales as a major issue as both options would take years.

[Ms Gaze, the secretary of the North East Sector's PCTs] advised that other consultations have not used the 'no change' option. [Mr Surgeon, an Executive Member of the Heywood and Middleton PCT] asked if by not including option 1, would this be taken as a money saving exercise only? [He] asked if the CRG had discussed Option 1? [Mr Wilders] advised that option 1 came from the clinical workshops - if we don't change we will be left with an infrastructure that isn't fit for purpose. [Mr Surgeon] asked using what scoring? [Mr Wilders] advised safety and finance.

The JPCT Committee agreed to exclude Option 1 - do nothing from the range of options being put forward into the consultation document."

35. In November 2005, an Evaluation to the document published in July 2005 was published by the University of Salford. It highlighted that what worried the public most was proposals for general hospitals and specialist hospital services. In particular, concern was expressed about the proposal that not all of the four hospital sites would have A&E:

"The move to have full A&E in 3 sites rather than 4 is very worrying."

Similar sentiments were expressed in that document, see pages 183, 188 and 189.

36. On 17th November, the Joint Committee met again. The draft consultation document was discussed. An amendment was to be made to provide more description of Rochdale as a locality hospital. The Chairman put forward the proposal that the three options should go forward for formal consultation and that the "do nothing" option was a possibility but would not be included in the formal consultation document.
37. In January 2006 there was published a document (see tab 9 of the defendant's bundle) setting out how the preferred option had been arrived at. It went through each of the three options. Option 1 was to be the preferred option. It reiterated why Rochdale was selected as a locality hospital. At page 209, the document recorded this:

"No change

All NHS consultation should consider whether any changes need to be made at all.

We cannot solve the challenges which we face in providing safe, appropriate and high quality health care by allowing things to stay as they are. We need to make sure that our health services, both in the community and in hospitals, are designed to meet these challenges, and to give patients the best possible care they need, when they need it. To do this, we need to change our community services and our hospital services. If we do not make changes ourselves change would still be forced on us, in particular in relation to our ability to maintain safe quality services in our hospitals. We cannot and would not provide services which did not give patients appropriate levels of quality and safety. If we were not able to assure the public that our services were safe, we would have to stop providing them. Changing services in a planned way, through this consultation, gives us the opportunity to meet these challenges and create high quality, safe services for all patients. As a result, the Joint Committee of Primary Care Trusts agreed that doing nothing is not an option."

38. I now come to the formal consultation document published later in January 2006. The three options were set out. Option 1, the preferred option, was that Fairfield, North Manchester and Oldham would provide acute medicine and A&E services. Rochdale Infirmary would become a locality hospital, providing an urgent care centre. Option 2 was a variant but with the same proposals for Rochdale. Option 3 was a further variant but with the same proposals for Rochdale.
39. At page 235, it is recorded in that document that the responses from the public were of concern about the reduction in A&E sites. It said:

"What we are doing

Emergency care or unplanned care isn't just about accident and emergency departments. Emergency care is now provided by a wide range of different services - out-of-hours services, emergency mental health teams, ambulance services, NHS Direct, walk-in centres - as well as accident and emergency departments. We want to integrate these services better to make sure patients are treated in the most appropriate way."

40. In discussing Option 1, it was made clear (see page 253) that Rochdale would have its urgent care centre and that it would continue to take many selective medical patients and would treat around 85 per cent of the patients currently treated by Rochdale Accident and Emergency.
41. At page 260 is a passage which is headed "Options we have considered and have not put forward for formal public consultation at this stage." That was the option of "doing nothing". It was then explained why it was considered that Option 4, as it was described, of doing nothing, was not put forward for formal public consultation and I do no propose to read it out. It reflects what I have already recounted in this judgment.
42. The consultation document provided a response form. It specifically asked the question whether the respondents supported the preferred option and invited comments. Furthermore, it is plain from that document that the respondent could put anything he liked about the options including that there should be "no change".
43. The defendants formally consulted, as I have set out. I am told by Ms Richards, and have no reason to doubt, that, as part of this consultation, 106,625 patients and members of the public were engaged through a campaign bus. There were 692 public meetings, attended by 10,898 persons. There was presentations to 227 groups, 141 of which were classified "as hard to reach". There were almost 5,000 visitors to the website and 4,085 people completed formal response forms. Six petitions relevant to the Rochdale, Bury and Heywood areas collected 37,993 signatures. There was a print, ie newspaper advertising, and a radio campaign that reached 785,291 people, as well as the distribution of 349,339 documents, 12,181 posters and 900,000 coasters. In order to reach as many people as possible, a campaign bus and mobile team were employed and documentation was made available in different languages, large print, brail and audio. It is estimated that the consultation exercise, up to and including 5th January 2007, cost £742,023.
44. In September 2006, just before the Joint Committee met, a consultation assessment report was published. That document reveals that just under 38,000 people signed petitions, of which 33,000 from Rochdale indicated their strong opposition to the proposals in respect of Rochdale Infirmary.
45. The meeting on 14th September 2006 was held in public. Heartfelt pleas were made by a councillor, members of the public and a Member of Parliament of Rochdale that the A&E in Rochdale should be kept. It is plain to me that there was intense discussion concerning the Rochdale Accident and Emergency. The options were the key options I have referred to, plus an Option 1A, which came from the Ambulance Service but which did not affect the proposals in respect of Rochdale Accident and Emergency.
46. The meeting lasted the whole day. Tab 12 of the defendant's bundle exhibits the whole of the minutes. Under paragraph 10, it is recorded as follows:

"Agreeing which option to adopt:

TP [Mr Presswood, the chairman of the North Manchester PCT] emphasised that it is not possible to satisfy everyone and that there are strong feelings around, and people would be very disappointed whatever option is chosen. There would be many disappointed clinicians if we chose the 'no change' option. Similarly, if we chose any one of the options, people living in the areas will be concerned about the impact of the proposals on their area. [Mr Presswood] emphasised the Committee's belief that the process had been thorough, fair and transparent.

[Mr Presswood] then asked each member of the Committee to state which option they would choose."

I should have made clear that Mr Presswood was not only the chairman of the North Manchester PCT but also was the Chairman of the Committee at that stage.

47. Each constituent PCT expressed its view and chose Option 1. The chairman of the Rochdale PCT expressed his Trust's full support that "no change" was not an option as there was an inability to maintain the current status of the work force, safety, finance and stability. A status quo would prevent the improvement of services (see in particular the minutes at page 395).
48. Mr Kelly submitted that it was not until late 2005 or early 2006 that the defendants specified which site might have to give up its A&E Department. Up to that point the sentiments and proposals expressed in the documents were "aspirational". But in early January 2006, he submitted, things started to go wrong. Although it was stated that all NHS consultations should consider all or no change, "no change" was ruled out. The former consultation document did not put out for consultation any option that did not involve Rochdale losing its Accident and Emergency Department. The defendants therefore did not consult about whether the Rochdale A&E should be kept open. At the Joint Committee meeting on 14th September 2006, Option 1A, he submitted, was put in but no option to keep the Rochdale Accident and Emergency Department open was formally put on the table.
49. Thus, Mr Kelly submitted that the fundamental flaw in the process was not to keep open and consult upon an option not to close the Rochdale A&E. He submitted that the defendants had shut their minds by either January 2006 or September 2006 to the option of keeping the Rochdale A&E open. Mr Kelly submitted that therefore the defendants did not carry out their duty under section 11 of the 2001 Act or within the principles annunciated by Hodgson J in Gunning.
50. Ms Richards submitted that the options put forward in the January 2006 formal consultation document emerged from a very lengthy public engagement in which the public had every opportunity to, and did, comment upon how health services should be provided in their localities. It was lawful for the defendant, she submitted, not to identify every conceivable option but to identify the options which they considered to be feasible and the best that could be devised. There was no closing of minds. She pointed to the minutes of 14th December 2006, which she said indicated that "no change" was discussed but rejected. As I have said, she submitted this it was always open to the Joint Committee to reject any or all of the options.
51. In my judgment, the proposals, that is to say the three options (or four if one includes Option 1A), were part of the process of forming a policy or reaching a decision. No final decision was taken until January 2007. But the decision impugned was taken in December 2006. The consultation process, up to and including the intense discussion and debate on 14th September 2006, was an exercise conducted in good faith and there was no shutting of minds. All the options considered would necessitate Rochdale Infirmary losing its Accident and Emergency Department but in its place there would be an urgent care centre which was likely to cope with 85 per cent of a number of patients dealt with by the Accident and Emergency Department. That view was arrived after lengthy consultation in which it was apparent that decisions might have to be made which might necessitate at least one of the hospitals losing its A&E service. No doubt strong views were expressed by health care professionals and the general public about each hospital A&E Department, including Rochdale, prior to the formal consultation document in January 2006 and indeed up to and including the meeting on 14th September 2006.
52. In public consultations there is very likely to come a point at which various courses of actions are narrowed down but not excluded from final consideration. That, in my judgment, is perfectly lawful. In the instant case, the defendants put out for formal consultation options which they considered to be feasible and appropriate. Had they then adopted a fixed policy or made a decision and thereafter were only concerned with the timing of its implementation and other matters of detail, then I can well see that it would be arguable that the defendants had not carried out their duty under section 11 of the 2001 Act and ignored the dicta in Gunning. But in my judgment it is not arguable that that was what happened. I accept Ms Richard's submissions.
53. This means that I must refuse permission to bring judicial review proceedings.
54. I wish to make it plain that I have not been asked by the claimant to permit these proceedings to go forward on the basis that the decision was unreasonable and/or irrational. The claimant's family and its legal team appear now to accept that the decision of 14th September 2006, if not flawed by any defect in the consultation process, was a decision which is incapable of challenge on grounds that it was unreasonable, perverse or irrational.
55. Ms Richards sought to persuade me that, even if I were minded to grant permission, it should be refused because of the delay in bringing these proceedings. She submits, see paragraph 31.2 of the summary grounds, that the grounds for judicial review first arose in November 2005 and that thus there has been significant delay. She submitted that, had the judicial review challenge then been mounted, any flaw could have been thereupon rectified.
56. I do not accept that submission. The reality is that, had the claimant jumped in at that stage before any decision had been taken upon the options as set out in the consultation document of January 2006, an application for judicial review would have been met by the defendants with the unanswerable submission that the proceedings were premature and that the court should not be burdened with unnecessary litigation when the defendants might still decide "no change ". In my judgment, the claimant was entitled to see what decision in fact was made. If the Joint Committee had decided to reject all the options, no judicial review proceedings would then have been taken.
57. MS RICHARDS: My Lord, I understand that the first claimant is publicly funded but the PCTs do not seek an order for costs against him.
58. MR KARIM: Just in relation to the first claimant, that there be public assessment of costs.
59. MR JUSTICE BENNETT: Certainly. Of course there can. Will either of you require a transcript? If you might I had better retain the papers.
60. MS RICHARDS: We will, because there is the separate process going on, which Mr Kelly referred to yesterday, consideration by the Secretary of State, and I think it would be helpful to know precisely what would happen with the challenge.
61. MR JUSTICE BENNETT: Well, then you will obtain it and fund it. Very well. Then I will keep the papers.