QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R on the application of Save our Surgery Limited
- and -
|Joint Committee of Primary Care Trusts
|Newcastle Upon Tyne Hospitals NHS Foundation Trust
Dinah Rose QC and Marina Wheeler (instructed by Capsticks Solicitors) for the Defendant
Fenella Morris QC (instructed by Samuel Phillips Solicitors) for the Interested Party
Hearing dates: 11th, 12th, 18th February 2013
Crown Copyright ©
Mrs Justice Nicola Davies :
• The Steering Group: this primarily provided clinical advice. It was chaired by Dr Patricia Hamilton and comprised 25-30 members of professional and lay associations and commissioners from around the country;
• The Standards Working Group: a sub group of the Steering Committee led by clinicians whose role was to research and develop a framework of clinical and service standards;
• An Independent Assessment Panel (the "Kennedy Panel") chaired by Professor Sir Ian Kennedy whose role was to review the existing providers of paediatric congenital cardiac services ("PCCS") and evaluate their compliance with the proposed service standards currently and in the future. The panel was comprised of experts in paediatric cardiac surgery, paediatric cardiology, paediatric anaesthesia/paediatric intensive care, paediatric nursing together with lay representatives and NHS commissioners.
The Legal Challenge
a) procedural unfairness – a failure to disclose sub-scores awarded by the Kennedy Panel which were the key to understanding the "material differences" in "Quality" between the centres considered in the configuration assessment. This failure deprived the consultees of the opportunity to make intelligent and informed responses, which, had they been taken into account by the JCPCT, at the very least may and probably would have had a significant influence on the outcome of the configuration assessment;
b) a failure to take into account material considerations: a failure by the JCPCT itself sufficiently to inquire into and then take into account the supposed "material differences" in "Quality" between the centres which were being considered in the configuration assessment by failing to have regard to the Kennedy Panel sub-scores and by relying on mistaken and erroneous advice/assurance from Professor Sir Ian Kennedy.
i) Newcastle Upon Tyne Hospitals NHS Foundation Trust be joined as an interested party;
ii) A rolled up hearing to determine the application for permission and the substantive claim be heard.
"…where a proposed service change spans more than one PCT, they will need to agree a process of joint consultation. The Board of each will need to formally delegate responsibility to a Joint Committee, which would act as a single entity. Following consultation the Joint PCT Committee will be responsible for making the final decision on behalf of the PCTs for which it is acting."
"108 It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168)…
112...It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absence and statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation although it might by quite onerous, goes no further than this."
"68. What needs to be published about the proposal is very much a matter for the judgment of the person carrying out the consultation to whose decision the courts will accord a very broad discretion…But, in my judgment, sufficient information to enable an intelligible response requires the consultee to know not just what the proposal is in whatever detail is necessary, but also the factors likely to be of substantial importance to the decision, or the basis on which the decision is likely to be taken…
70...: a flawed consultation exercise is not always so procedurally unfair as to be unlawful; R (Greenpeace) v Secretary of State for Trade and Industry Env LR 29, Sullivan J…the true test is whether the consultation process was so unfair that it was unlawful…"
".…(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects…(5) Fairness will very often require that a person who may be adversely be affected by the decision will have an opportunity to make representations on his own behalf either before the decision has taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weight against his interest fairness will very often require that he is informed of the gist of the case which he has to answer...
The respondents acknowledge that it is not enough for them to persuade the court that some procedure other than the one adopted by the decision maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made…"
"What is fair procedure is to be judged not in the light of constitutional fiction…but in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached…"
Bushell did not involve a consultation process, the issue was one of fairness at an inquiry.
" 26. The mere fact that information is "significant" does not mean that fairness necessarily requires its disclosure to consultees…nevertheless the degree of significance of the undisclosed material is obviously a highly material factor.
27. What fairness requires depends on the context and the particular circumstances; see for example, R v Secretary of State for Education, ex-parte M  ELR 162, at pp. 2006-2007, where Simon Brown LJ emphasised the need to avoid a mechanistic approach to the requirements of consultation…
30. …The fact that the material in question comes from independent experts is plainly relevant to the overall assessment, but it was a combination of factors – including the requirement of a high degree of fairness…the crucial nature of the advice, the lack of good reason for non-disclosure, and the impact on the applicants- which led to what was on the facts a fairly obvious conclusion…
65…even if one accepts the possibility that release of the fully executable version would add two to three months to the appraisal process, that has to be viewed in the context of an already lengthy process…I do not think that either the additional time or the additional cost to NICE should weigh heavily in the balance in deciding whether fairness requires release of the fully executable version. If fairness otherwise requires release of the fully executable version, the court should in my view be very slow to allow administrative consideration of this kind to stand in the way of its release.
66…procedural fairness does require release of the fully executable version of the model. It is true that there is already a remarkable degree of disclosure and of transparency in the consultation process; but that cuts both ways, because it also serves to underline the nature and importance of the exercise being carried out. The refusal to release the fully executable version of the model stands out as one exception to the principle of openness and transparency that NICE has acknowledged as appropriate in this context. It does place consultees…at a significant disadvantage in challenging the reliability of the model. In that respect it limits their ability to make an intelligent response in something that is central to the appraisal process…"
"…what fairness demands is dependent on the context of the decision.
The decision in the present case does not impact on personal liberty, a person's home, the use which a property owner may make of his property or the right to conduct a business. Its context is the regulation by a statutory body of one aspect of the process charged by a private monopoly supplier to its customers…the ultimate issue is not the provision or non provision of a service. It is simply the charge that may be levied by the airports per passenger
 This puts the decision of the CAA at the "soft" end of the spectrum…fairness should reflect the context as I have described it. It is for this reason that I reject Mr Béar's submission that the present case is on all fours with Eisai where the regulatory decision was effectively as to whether or not the company should be enabled to market their drug within the NHS. I see that as a significantly more intrusive decision which is more likely to attract a higher level of procedural fairness…"
"a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise;… the person whose interests are likely to be affected does not have to given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance…nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit unconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information…"
"The defendants would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of the decision…"
i) The issue for the court is whether the consultation process was "so unfair it was unlawful" – Devon County Council;
ii) Lawful consultation requires that: i) it is undertaken at a time when proposals are still at a formative stage; ii) it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; iii) adequate time must be given for this purpose; iv) the product of the consultation must be conscientiously taken into account when the ultimate decision is taken;
iii) Disclosure of every submission or all of the advice received is not required. Save for the need for confidentiality, those who have a potential interest in the subject matter should be given an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made. The degree of significance of the information is a material factor;
iv) The fact that the information in question comes from an independent expert or from the consultee is relevant but it is a combination of factors including fairness, the crucial nature of the advice, the lack of good reason for non disclosure and the impact upon consultees which are to be considered upon the issue of fairness;
v) What fairness requires is dependent on the context of the decision; within that the court will accord weight and respect to the view of the decision-maker;
vi) If the person making the decision has access to information but chooses not to consider it, that of itself, does not justify non-disclosure; it will be for the court to consider the reason for non-disclosure;
vii) A consultation process which demonstrates a high degree of disclosure and transparency serves to underline the nature and importance of the exercise being carried out; thus, non-disclosure, even in the context of such a process, can limit the ability of a consultee to make an intelligent response to something that is central to the appraisal process;
viii) The more intrusive the decision the more likely it is to attract a higher level of procedural fairness;
ix) If fairness requires the release of information the court should be slow to allow administrative considerations to stand in the way of its release.
The Assessment and Consultation Process
Self Assessment Template
"2. Evaluation process and scoring
The evidence you supply in this exercise will be assessed as part of the evaluation process we will undertake, and will therefore ultimately inform the final recommendation. The entire evaluation process has 2 discrete stages – Assessment Evaluation and Configuration Evaluation. This process will fulfil the first stage of the Assessment Evaluation.
The second stage of the Assessment Evaluation will be visits by the Assessment Panel to each centre… for one day in order to review the current service against the criteria specified in the self-assessment. The visit will give the Panel the opportunity to meet all members of the team, to see the service in operation, and to gain assurance against all reported development opportunities in the self-assessment document…
It should be noted that the criteria and scoring process for the Configuration Evaluation have not yet been determined. This will be communicated to all stakeholders in due course. However, the criteria and scoring for the Configuration Evaluation is separate from the Assessment Evaluation. The information supplied in the assessment stage of the process will not have any direct bearing on the scoring of the configuration evaluation process."
Scores will be allocated against each criterion, which will come together as a final score for each centre. The scoring process will take place as follows:
Before the assessment visit, each member of the Panel will score these self assessment submissions using the criteria detailed below.
An assessment of the financial viability of the proposals will be conducted by the NSC Team and supplied to the Panel for their consideration, alongside the completed self assessments.
Subsequently, during the assessment visits, the first stage scores will be validated by each member of the assessment panel, as a result of what they see, hear and observe during the day.
The scores will then be cross checked between all panel members at the end of each visit, to ensure consistency and rationality.
Feedback will be given to each individual centre by letter to the Chief Executive when all assessment visits to all centres have concluded (July 2010).
Individual scores for each centre will help identify the configuration options, which will then be tested against criteria such as ease of access, affordability and deliverability, and risks of reconfiguration. The exact scoring mechanism for this stage has yet to be determined.
For the Self Assessment Evaluation Stage, each question within the 9 self assessment criteria will be scored individually, as indicated below:
1. Inadequate (no evidence to assure panel members)
2. Poor (limited evidence supplied)
3. Acceptable (evidence supplied is adequate but some questions remain unanswered or incomplete)
4. Good (evidence supplied is good, and the panel are assured that the centre has a good grasp of the issues)
5. Excellent (evidence is exemplary)
Each question within that criterion will then be weighted according to the stated multiplier, in order to reach a final score for each question. The sum of these final scores will be the total score for that criteria.
The total scores for each criterion will come together as a final score for each centre…
3. How the Criteria for Self Assessment were derived
The criteria that this template asks for evidence against are as follows:
1. Leadership and Strategic Vision
2. Strength of Network
3. Staffing and Activity
4. Independent Services
5. Facilities and Capacity
6. Age Appropriate Are
7. Information and Choice
8. Excellence of Care
9. Deliverability and Achievability
Criteria 1 and 9 are derived from the need to review the strength of the organisation, in terms of its future sustainability and ability to ensure continuous improvement.
Criteria 2-8 as derived from the full designation standards document, which is detailed at Appendix 1. The designation standards document describes the proposed future model of care for Paediatric Cardiac Surgery Services. The standards will, in effect, be used for two purposes:
As a tool for assessment
A number of the standards are "core requirements" in order to pass the assessment evaluation stage of the process, and to be able to move forward to the configuration evaluation. These are represented by criteria 2 to 8.
As a commissioning service specification
Once the reconfiguration is complete, and centres are designated, they will be expected not only to have the core requirements in place, but also to demonstrate to commissioners how they will achieve the standards, within timescales specified. The standards document will therefore be used as an ongoing commissioning service specification which will be managed through local performance management processes."
a) Current achievements against standards
b) Development plans
c) Meet the minimum of 400 procedures.
Kennedy Panel assessment
"…Using the evidence that we had been given and had gathered, the Independent Panel members assessed the centres current performance in meeting the Standards and the robustness and achievability of the centres' development plans for meeting the Standards, if they were not currently met…We were as interested in the centres' ability to meet them in the future, and the realism and feasibility of their ambitions in this respect…Each sub-score constituted a judgment on a number of factors, and the views of the different experts on the Independent Panel – drawing from their own experience - on those factors. The scores were composite of these factors…"
Each centre was said to be scored independently of the others. The final consensus score was the result of discussion.
|Great Ormond Street||464|
"Dr Carroll requested the Committee be given access to the subcomponents of the panel's original scorings. Mr Glyde said a summary report had been offered to members at a previous meeting but not taken up by members. Ms Claire stated that she did not wish to see the detail: she believed that the expert's interpretation was authoritative. Sir Ian Kennedy highlighted the risk of judicial review; the process was undermined if data was provided when experts had been appointed to make a judgment. Ms Llewellyn shared Sir Ian Kennedy's concerns. Asked if the detail was disclosable under the Freedom of Information Act, Mr Glyde said he believed that it would be once the process was concluded.
Ms Christie suggested that the summary report of key findings from each centre be provided by the panel Sir McKay endorsed Ms Christie's suggestion and advised the Committee to be disciplined in resisting requesting further detail once the summary was provided."
"Areas of compliance
The Network is currently very strong and the trust has good relationships with all key stakeholders
All critically interdependent services are currently co-located
The PICU currently meets core PICU standards and there are two separate rotas for anaesthetists
The Trust has good facilities that can sustain an increase in activity to 400 procedures per year
The Trust had implemented best practice from Ohio
Areas of weaker compliance
The Trust did not demonstrate innovative working practices
The Trust has no plans to use telemedicine for paediatric cardiac surgery
Waiting lists at the trust are long
There are concerns about future staffing capacity in PICU and theatres
The trust has no transition nurse
The Trust did not sufficiently describe an academic research portfolio"
"Areas of compliance
The Trust has a strong record of delivering high quality services and had a strong clinical governance structure
The Trust demonstrated highly innovative work, especially with regard to the use of Berlin Hearts. It was the first centre to set up a cardiac genetics database. The estates strategy was strong
All services are co-located as per the standards
Areas of weaker compliance
Because of the small and specialist nature of the PICU it has insufficient staffing levels to maintain a consultant led service
There was limited information about how the trust would work with other hospitals in the network, including hos the IT strategy and transition would be applied within the network, and how it would resolve the concerns working with Carlisle.
There is no clinical psychologist or Children's Cardiac Specialist Nurse"
Configuration options assessment
i) Each option (cluster of centres) should ensure that all centres included within in it are able to carry out a minimum of 400 procedures per year, ideally 500 and options should contain six or seven centres;
ii) Due to the size of its catchment population, London requires at least two centres;
iii) Oxford should be discounted due to sub-optimal quality and lack of contribution to access times;
iv) Birmingham to remain in all options due to high referrals from a large catchment population;
v) Bristol and Southampton are mutually exclusive but one required in all options to serve local populations;
vi) Two sites are required in the "North" but patient numbers are insufficient to sustain three: for demographic and geographic reasons, options to include Liverpool and either Newcastle or Leeds.
(a) centres will deliver a high quality service;
(b) innovation and research are present;
(c) clinical networks are manageable;
(a) high quality NCSs will be provided;
(b) the negative impact on other interdependent services will be kept to a minimum, as will negative impacts on the workforce;
centres are likely to perform at least 400-500 procedures; will not be overburdened and will be able to recruit and retain newly qualified staff.
iv) Access and travel times:
negative impact of travel times for elective admissions are kept to a minimum; retrieval standards are complied with.
Option A: Newcastle, Liverpool, Leicester, Birmingham, Bristol, London x 2
Option B: Newcastle, Liverpool, Birmingham, Bristol, Southampton, London x 2
Option C: Newcastle, Liverpool, Birmingham, Bristol, London x 2
Option D: Leeds, Liverpool, Birmingham, Bristol, London x 2
"In broad terms our concerns relate to
Matters of factual accuracy and consistency.
Matters of scope, context and approach in the review and with the options appraisal.
3.1 Matters of factual accuracy and consistency
The final report received from Professor Ian Kennedy's Review in January 2011 was different from the draft letter about the report that the Trust had commented on in 2010 and contained a number of inaccuracies around the PICU configuration and specialist nurse posts. Although the Trust had responded to the inaccuracies in the draft letter, a number of them were not corrected in the final report from Sir Ian Kennedy. There was not an opportunity to correct the final report before this information was placed in the public domain, and indeed members of the Safe and Sustainable team have repeated this information in the media.
Despite requests, the details of Sir Ian Kennedy's expert panel's scores for Leeds have not been shared with us nor have the errors been rectified. The Pre Consultation Business Case (PCBC) and the final consultation document attempt to describe the process and assumptions that the JCPCT used to shortlist the final four options that had been put to the public…"
It should be noted that there had been no previous request by Leeds for disclosure of the details of the Kennedy Panel's scores.
Further Kennedy Panel Assessment
The Price Waterhouse Cooper (PwC) Report
KPMG work: sensitivity testing and option appraisal
The Advisory Group for National Specialised Services ('AGNSS') Report
The Decision Making Business Case ('DMBC')
"[A]lthough the scoring process has consistently highlighted option B as the highest scoring option the JCPCT should not regard the scoring process as determinative. Rather the JCPCT's decision should be based on a consideration of all of the available evidence in the round, including the evidence for and against alternative options".
Relevant matters considered in this section included the importance placed by consultees on quality, the definition of co-location, ways to mitigate increased travel times, population density and projections, the "validity of the Newcastle network" and advice relating to the NCSs.
" Some respondents suggested that the outcome of the Kennedy's Panel Report was that there was no material difference across the centres, such as the suggestion that "all centres are within 95% of the top scoring centre"…
Such was the concern of how the JCPCT should reflect the findings of the panel around the scoring of "quality" that the chair of the Panel, Professor Sir Ian Kennedy wrote to the JCPCT in October 2011:
"the panel is of the view that it's report has identified important differences in the extent to which the centres can meet the quality standards in the future: panel members have reflected these differences in their scores and in the report. It is our view that the outcome of the panel's work would be rendered redundant were the JCPCT to interpret the report's conclusions thus finding that there are no material differences across the centres and their ability to meet the quality standards in the future. This interpretation would not be justified. To repeat, there are important differences.
It is therefore proposed that the sub-criteria "high quality service" has the greatest influence on the total score for quality based on a strong theme from respondents during consultation – that "quality" of service should be the most important of the JCPCT's considerations…".
"There were two key reasons for the JCPCT favouring option B over option G. The issues were quite finely balanced, but the JCPCT was satisfied that the differences were conclusive. Firstly, and as demonstrated by the scoring, option B was the higher scoring option for quality. The second reason related to nationally commissioned services (NCS) and in particular the risks around relocating cardiothoracic transplant services, which would be needed if cardiac surgery services at Newcastle ceased"
Of that risk Sir Neil McKay stated:
"the importance of retaining a safe transplant service was such that the scoring process carried out by the JCPCT (and the earlier quality assessment) would have needed to show a material difference in favour of option G, or there would have had to be another significant countervailing argument in favour of option G in order to counterbalance the risk. Again the issue of transplant was not itself determinative (that is, we did not decide on the basis of the issues relating to Birmingham's ability to undertake transplants) but it was a significant consideration".
(i). Without the scores the consultees could not sensibly, intelligently, or meaningfully respond to all that they had to in respect of the total scores and the Kennedy Report;
(ii). The scores were being used comparatively. It is not the claimant's case that the JCPCT were not entitled to rely on comparative scorings but if so it is a further reason to disclose the sub-scores so as to enable centres to see how they compare and comment upon their comparisons;
(iii). The more information that is given the more intelligible and meaningful the response. The more productive and more transparent the consultation exercise the more information will be generated and thus improve the quality of the decision making;
(iv). During the consultation exercise Leeds requested the sub-scores as did the JHOSC and CHSF subsequently. If Leeds thought the scores were relevant what good reason was there to refuse disclosure. If disclosure were deemed appropriate after the consultation it makes no sense to have withheld the sub-scores prior to the decision making when disclosure could have been meaningful.
"Members had heard that financially there was little to discriminate between options G and B and that they were the best value for money. While there were many issues to be addressed in implementation, there was no showstopper to suggest that either option B and G could not work…"
Further, on 23 April 2012 the JCPCT met, by this time the advice from AGNSS had been received. It is noted that:
"the Secretariat's advice to the Committee was that the relocation of the paediatric transplant service was not "a showstopper"; i.e. the issue of relocation of NCS should not dictate the final list of options for consideration on 4 July. However, AGNSS's advice was very strong evidence which should be fed into the scoring process around deliverability and into a consideration of the options generally".
Reason for non-disclosure of scores
Was it inevitable that the outcome would have been the same
Ground (2) Failure by the JCPCT itself to scrutinise or properly take into account the Kennedy sub-scores.
(i) Initially, at least, the JCPCT, or some members of it, thought that there was an expectation that the Kennedy sub-scores and underlying methodology would be disclosed;
(ii) To the JCPCT's knowledge, interested consultees had requested disclosure of the Kennedy sub-scores and this request had been refused;
(iii) Sir Ian Kennedy had expressly advised the JCPCT that there were 'important differences' between the centres but had also advised them not to seek to look at the underlying data for fear of judicial review. That advice was bad. The JCPCT had an obligation to scrutinise and assess the information which underlay the Kennedy scoring, particularly as it then sought to compare and rank centres when Professor Sir Ian Kennedy had explained that the centres had not been scored one against the other;
(iv) As the JCPCT had only the Kennedy Report (or a digested summary of it) there was no way of ascertaining what the 'important differences' between the centres were. The 'key' to understanding the weight which the Panel had allocated to aspects of 'compliance' or 'gaps in compliance' were the Kennedy sub-scores;
(v) The reliance on the advice of Professor Sir Ian Kennedy, meant that the JCPCT did not scrutinise the use of the Kennedy scores and the ranking table when they should have done so, in view of the fact that:
(a) The Self-Assessment Template had stated that the scores would not be used directly in the configuration assessment, when in fact that is precisely how those scores were being used;
(b) The Kennedy Panel itself had made clear that the Panel had not scored the centres against each other but in isolation and on their own merits;
(c) The Kennedy scores were now being used as the proxy for 'high quality service' in the configuration assessment which necessarily ranked Options against each other, and by necessary implication, would depend on a comparative ranking between centres. Thus the only relevant difference between Option B and Option G, the two highest scoring configuration options, was that Option B included Newcastle in substitution for Leeds. In short the configuration assessment quickly turned into a Leeds vs. Newcastle 'play-off', a fact recognised by the JCPCT itself (April 2012).
Grounds One and Two
(i) Fairness does not oblige a decision-maker to disclose to consultees the underlying material which has informed judgments or assessments made by those who have advised the decision-maker, it does not even require the disclosure of the advice itself. In any event, disclosure of the advice, and a summary of the reasons for it, was done in this case, and is sufficient. Fairness does not require the disclosure of material which has not been considered or relied upon by the decision-maker;
(ii) Consultees were provided with sufficient information to make informed and intelligent responses to the consultation; they did in fact make such representations;
(iii) The information analysed by the Kennedy Panel was derived from the centres themselves: they were aware of the detail of such information; consultees had all the information concerning the assessments of the Kennedy Panel which was available to and relied on by the defendant;
(iv) Disclosure of the sub-scores would not have promoted sound or efficient decision-making, and would have been disproportionate.
"Although the Independent panel's work was a major part of the assessment of "quality" it had no bearing on the JCPCT's assessment of deliverability, as set out below. I want to make it clear again that it was not just the scores themselves that informed the JCPCT's conclusions. The final decision was the product of two years of analysis and evaluation by the JCPCT, in the largest single service reconfiguration analysis that the NHS has undertaken to date".
Reason for non disclosure
Disclosure would have made no difference
(a) Sensitivity testing undertaken to address the complaint that the merits of Leeds as a centre had been underestimated, still resulted in Option B scoring higher than Option G;
(b) The Kennedy Panel assessment and scores were only one element in the decision to select Option B. A vital element in evaluating the configuration options was that Newcastle provided NCS; in particular a transplant and bridge to transplant service, which the JCPCT was advised could not safely be developed at an alternative centre within acceptable time scales. The JCPCT was entitled to give this factor considerable weight.
The Interested Party
The claimant's standing within these proceedings
"the quality of care provided was the most frequently mentioned issues for respondents discussing either specific hospitals or the options more generally. In fact, quality of care featured heavily throughout the consultation responses, as each of the questions posed in response form and in the letters and emailed requests submitted. There was a strong belief amongst many that quality should be the deciding factor in service planning."
1. Option B 3 Option G 2
2. Option B Option G High quality service 3 2 Innovation and research 3 3 Clinical networks 2 3 8 8
The totals of the sub-criteria scores were identical. It was the weighting given to 'high quality service' which resulted in an additional point for the overall score for 'Quality' for Option B. Immediately below the table it was stated that the proposed scores for the sub-criterion of high quality service were based on the scores applied by Professor Kennedy's Panel.
a) the comparative closeness of the scoring;
b) the weighting attached to 'high quality service' reflective of its importance in the context of the overall scoring;
c) the significance attached to the Kennedy Panel's scores in the scoring of 'Quality', itself an important factor.
I do not accept the defence description of the sub-scores as being no more than 'underlying workings'. They provided the basis for the consensus score which was ultimately used as one of the most valuable and thus significant tools in the assessment of 'Quality' of the respective centres.
"Mr Buck noted that the proposed scores for B and G were three and two respectively and the only difference was the presence of Leeds. Miss Banks confirmed this; Leeds had scored less well than Newcastle in the Kennedy Assessment which was the reason for this result. Mr Glyde explained that the report was in the public domain but the Committee had decided not to consider the sub-scores so it could not respond as to the specific strengths and weaknesses in each trust. For that reason, KPMG had focused on the overall score, which had placed Newcastle higher than Leeds in terms of overall compliance with standards. However, the next agenda item would explore the submissions put to the Committee of the relevant strengths of its service compared to Newcastle."
The claimant relies on this entry as demonstrating the point at the core of its challenge. The scoring is close, the only difference between B and G being the presence of Leeds which scored less well by reason of the Kennedy assessment. Crucially, the JCPCT acknowledged that it could not respond to the specific strengths and weaknesses in Leeds and Newcastle because it had decided not to consider the sub-scores. Mr Havers QC summarised the position thus: QED.
i) The score assumed increasing importance and thus significance in the evaluation process and was ultimately determinative of the difference in the 'Quality' score as between Leeds and Newcastle;
ii) The importance of 'Quality' has to be considered against a background in which a) it was identified as an important component by the many respondents to the consultation process; and b) 'important' and 'material differences' between the centres were said to have been identified by the Kennedy Panel, hence the advice given in October 2011 and recorded in the DMBC;
iii) The DMBC advised the JCPCT that 'high quality service' had the greatest influence on the total score for 'Quality' and that 'quality of service' should be the most important of the JCPCT's considerations;
iv) The Chair of the JCPCT identified 'two key reasons' for favouring Option B, the first being B's higher scoring for 'Quality';
v) This was a consultation process relating to the provision of paediatric cardiac surgical services; a matter of the highest importance to any child requiring such care and his or her family.
Scores used as comparators