England and Wales High Court (Administrative Court) Decisions

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

		& CO/17648/2013 Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		10/07/14

Mr Justice Hickinbottom:

Introduction

1. The Welsh Government is engaged in reforming health services in Wales.
2. As part of that process, in November 2011, it published a document, "Together for Health: A 5-Year Vision for the NHS in Wales", which said that the healthcare budget could not continue to increase year-on-year to meet rising demand, and therefore the way in which services were delivered would need to be reviewed to ensure a sustainable, high quality future health service in Wales. The status quo, it said, was not an option. The work on this programme of reform has been done through local health boards; although, in certain circumstances, the Minister for Health and Social Services ("the Minister") has the final word.
3. The reforms are being made against the backcloth of another Welsh Government paper dealing with the challenges of delivering health services in rural Wales, namely "Rural Health Plan – Improving Integrated Service Delivery across Wales" (December 2009) ("the Rural Health Plan 2009"). This proposed a greater focus of specialised health services, together with greater accessibility to less specialised services within communities. The report said (at paragraph 4.2.1 and 4.2.2):

"4.2.1 Providing the right care in the right place and by the right person in rural communities presents additional challenges. From our research, it is broadly recognised by people living in isolated communities in Wales that the delivery of more complex healthcare may need to be centralised in a small number of specialist centres where the expertise is concentrated to provide best possible outcomes.

Such models will require patients and their families to travel, sometimes making long journeys, to access care and where this is proportional to their need. This appears to be accepted as an inevitable consequence of rural living.

4.2.2 Alongside this, however, we need to ensure that core services and less specialist care are accessible within local communities, drawing on specialist care as and when necessary…".

4. These claims concern proposals to change services in largely rural areas of West Wales, as part of this programme.
5. Anthony Flatley ("the First Claimant") is a regular user of the Prince Philip Hospital, Llanelli ("PPH"), and the Secretary of an association called Save our Services Prince Philip Action Network ("SOSPPAN"). He challenges two decisions concerning service changes to emergency care at PPH, in two separate claims: a decision of the Hywel Dda University Local Health Board ("the LHB") on 15 January 2013 (Claim No CO/4383/2013, "Flatley 1"), and a decision of the Minister on behalf of the Welsh Ministers on 24 September 2013 in respect of those changes following a referral to him by the Hywel Dda Community Health Council ("the CHC") (Claim No CO/17298/2013, "Flatley 2").
6. Kayleigh Donohoe ("the Second Claimant") lives in Monkton, Pembrokeshire. She challenges a decisions of the Minister on 24 September 2013 and 21 January 2014 in respect of changes to neonatal care at Withybush Hospital, Haverfordwest ("Withybush"), again following a referral to him by the CHC (Claim No CO/17648/2013, Donohoe) .
7. Before me, Nicholas Bowen QC with Conor McCarthy appeared for the Claimants; Tim Buley for the Minister; and Monica Carss-Frisk QC with Iain Steele for the LHB. At the outset, I thank them for their full and helpful submissions.
8. There is no doubting the sincerity of the Claimants, and those who support them, in seeking to maintain the services at their local hospitals. They deeply believe that some of the changes proposed should not be made, as they will result in a diminution of services they receive. The LHB and the Minister do not accept that premise: they say that the changes will result in better health services, when viewed across the whole area. However, as I emphasised during the course of the hearing, this court is not concerned with the substance or merits of relevant decisions. The services to be provided to those who live in West Wales are a matter for the LHB and the Minister. It is they who have to grapple with the difficult decisions of providing health services to a population with increasing and competing demands for such services, in times of financial constraint. This court is only concerned with the lawfulness of the decisions, focused on the process adopted.
9. Mr Bowen submitted that, in respect of each of the decisions, that process was flawed.

The Grounds of Challenge

The LHB Decision: Flatley 1

10. In respect of the challenged decision of the LHB with regard to PPH, in short, prior to these proposed changes, the hospital had emergency care facilities with on-site doctors in the unit at all times. On 15 January 2013, after a consultation process, the LHB determined to change that arrangement in favour of nurse-led facilities with doctor support, not as a physical presence in the unit, but rather in the form of telephone and other electronic links to the Glangwili Hospital, Carmarthen ("Glangwili"), over 20 miles away.
11. Mr Bowen submits that the decision-making process was legally flawed, on three broad grounds (the numbers adopted below being mine):

Ground 1: The consultation process failed to give consultees a proper opportunity to present their case upon the proposals, in three respects:

Ground 1A: The LHB did not consult at a formative stage with an open mind, as they were legally obliged to do; because, prior to the consultation process starting, the proposed change had been predetermined by the LHB, or alternatively the LHB had a clearly preferred option which was not disclosed to relevant consultees at the time. Mr Bowen particularly focused on this, his primary ground.

Ground 1B: The LHB decision deferred a number of fundamental and highly controversial issues (including transportation of patients) to the implementation phase. These could not properly be severed from the issue of whether the LHB proposal was right in principle, as they were of such importance as potentially to call into question the advisability and viability of the proposed model.

Ground 1C: The LHB failed to give consultees sufficient time and information to enable them properly to engage with the process.

Ground 2: In breach of a legitimate expectation, the LHB resiled from a promise to appoint an independent chair of the board that is to implement the proposal.

Ground 3: The LHB failed to have due regard to equality matters as required by section 149 of the Equality Act 2010. In particular, having identified important equality impacts of its proposal, it failed to assess the scale of the impact and thus whether that impact called into question the propriety of the model itself.

12. Permission to proceed was refused on all grounds by His Honour Judge Bidder QC sitting as a judge of this court, on 17 May 2013. On 19 July 2013, at the renewal hearing, His Honour Judge Curran QC directed that the application for permission be adjourned to a rolled-up hearing, dealing with both permission and, if granted, the substantive application. However, on 25 October 2013, the claim was stayed by Wyn Williams J until the application for permission to proceed in the judicial review claim against the Minister's subsequent decision (i.e. the decision which is the subject of Flatley 2) had been determined. I removed that stay on 7 March 2014, when I granted permission to proceed in Flatley 2, on limited grounds.
13. All grounds in Flatley 1 are therefore before me on a rolled-up basis.

The Minister's Decisions: Flatley 2 and Donohoe

14. In respect of PPH, under statutory provisions to which I shall shortly come, the LHB's proposal was referred to the Minister by the CHC. Following investigation and a report by a Scrutiny Panel, on 24 September 2013, the Minister changed the decision of the LHB, in favour of a model with on-site doctors at the PPH emergency facility; and, on 21 January 2014, he determined that there would be an enhanced neonatal facility at Glangwili, and that Withybush would have only a midwife-led maternity unit.
15. Mr Bowen submits that each of these decisions is unlawful, on three grounds (again, the numbering being mine):

Ground 4: The Minister fundamentally misunderstood his obligations and powers under the relevant statutory regime and at common law with regard to a final decision on the proposal for change of services; and in particular failed to appreciate that the matters that he was required or entitled to take into account included deficiencies in the LHB's consultation process.

Ground 5: The illegality in the LHB consultation process infects the Minister's subsequent decision.

Ground 6: The Minister failed to discharge his public sector equality duty under the Equality Act 2010.

16. In Flatley 2, at a hearing on 7 March 2014, I granted permission to proceed on limited grounds (essentially, Grounds 4 and 5 above); and before me now I therefore have the substantive application on those grounds. I refused permission on Ground 6, and Mr Bowen now applies for that refusal to be set aside, for permission to be granted and for the substantive application on that ground to be determined in the Second Claimant's favour.
17. In Donohoe, on 1 May 2014, I granted permission to proceed on Ground 4, directing that the other grounds be considered on a rolled-up basis at a consolidated hearing with Flatley 1 and Flatley 2. The hearing before me proceeded on that basis.

Terminology

18. The challenged decisions therefore concern broadly Accident & Emergency ("A&E") (or, more accurately, emergency and urgent care) provision at PPH, and neonatal services at Withybush. Some definitions would assist.
19. The definitions of hospital emergency departments, set out in the Technical Document – Emergency and Urgent Care (August 2012) attached to the main LHB consultation document (see paragraph 47 below), which are uncontroversial, are as follows. A "Major Emergency Department (Type 1 Emergency Department)" is defined as a consultant-led service with appropriate resuscitation facilities available continuously 24 hours a day for resuscitation, assessment and treatment of acute illness and injury in patients of all ages, supported by identified key specialities such as surgery and paediatrics. An "Emergency Department (Type 2 Emergency Department)" is defined as all A&E/casualty/minor injury units which have designated accommodation for the reception of patients in need of emergency care and can be routinely accessed without appointment, which do not meet the Type 1 criteria.
20. In the LHB area, there are Type 1 Emergency Departments at Glangwili, Withybush and Bronglais Hospital, Aberystwyth ("Bronglais"). The facility at PPH is Type 2. Paediatric beds were removed from PPH in 1998, emergency general surgery in 2001 and general surgery in 2007. Consultant presence at night ceased in 2004, cover being restricted to GPs. Major cases that attend PPH are stabilised and transferred to other hospitals, notably Glangwili and Singleton Hospital, Swansea ("Singleton") (which is outside the Hywel Dda area, but only about 11 miles to the east of PPH).
21. The definitions relevant to neonatal care are derived from the British Association of Perinatal Medicine and the All Wales Neonatal Network. They are set out in the LHB consultation document "Your Health, Your Future" (see paragraph 41 below). Facilities are categorised by the level and intensity of care that they are able to provide, as follows. Level 1 units offer basic care to well babies with the ability to resuscitate if required. Level 2 units offer more specialist care to sick babies or those born early. Level 3 units are very specialist and offer intensive care to extremely low birth weight babies and those born very early.
22. In the LHB area, prior to the changes, Glangwili, Withybush and Bronglais offered Level 1 facilities. There are no Level 2 or 3 facilities in the area. Singleton offers level 3 facilities.

Legal and Policy Background

23. By section 1 of the National Health Service (Wales) Act 2006 ("the 2006 Act"), the Welsh Ministers have overall responsibility for health services in Wales; and, in pursuance of that general obligation, they have powers to provide services as they consider appropriate (section 2(1)(a)) and "do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty" (section 2(1)(b)). Those functions are in practice exercised by the Minister.
24. Section 11 of the 2006 Act establishes local health boards, unitary authorities which may be directed by Order of the Minister to exercise various functions relating to the provision of NHS services in their area (section 12(1) and (2)). The Minister may also give directions to a local health board about the exercise of any of its functions (section 12(3)). The LHB is the local health board for Carmarthenshire, Pembrokeshire and Ceredigion. It is an integrated body, with responsibilities for the health and well-being of the population of about 375,000 across those three counties. The LHB is of course an institution which, in addition to the actual Board itself, has other employees. So far as the LHB Board itself is concerned, it comprises about twenty members, with approximately equal numbers of independent members (including the Chair and Deputy Chair) and executive directors (including the Chief Executive).
25. Part 12 of the 2006 Act makes provision for "Public involvement and scrutiny". Section 183 requires each board to make arrangements with a view to securing that health service users are "involved in and consulted on", amongst other things, "the development and consideration of proposals for changes in the way [health] services are provided" and "decisions to be made by the Local Health Board affecting the operation of those services."
26. In addition to that requirement to consult generally, a local health board has a particular obligation to consult with the relevant community health council. Community health councils were established in England and Wales under section 20 of the National Health Service Act 1977. The English councils were abolished from 1 December 2003, but they are expressly retained for Wales by section 182 of the 2006 Act. The community health council for the LHB's area is the CHC.
27. Paragraph 1 of schedule 10 to the 2006 Act provides that:

"Each Community Health Council must –

(a) represent the interests in the health service of the public in its district, and

(b) perform such other functions as may be conferred on it by regulations under paragraph 2."

28. The relevant regulations, made under section 182 and schedule 10, are the Community Health Councils (Constitution, Membership and Procedures) (Wales) Regulations 2010 (SI 2010 No W37) ("the 2010 Regulations"). Regulation 26(1) provides:

"It is the duty of each Council to scrutinise the operation of the health service in its district, to make recommendations for the improvement of that service and to advise relevant Local Health Boards… of such matters relating to the operation of the health service within its district as the Council thinks fit."

29. As well as that duty of on-going operational scrutiny, regulation 27 (which is central to these claims) gives a community health council a right to be consulted by its equivalent local health board, and of course a correlative obligation on the board to consult with its council. So far as relevant to this claim, regulation 27 provides:

"(1) It is the duty of each relevant Local Health Board and NHS Trust in Wales (in this regulation referred to as "relevant Welsh NHS body") in respect of health services for which it is responsible, to involve a Council in –

(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;

and it is incumbent upon each relevant Welsh NHS body to consult a Council at the inception and throughout any such planning, development, consideration or decision-making process in accordance with any guidance which may be issued by the Welsh Ministers.

…

(3) Where a relevant Welsh… NHS body has under consideration any proposal for a substantial development for the health service in the district of a Council, or for a substantial variation in the provision of such a service, it must consult that Council at the inception and throughout any such consultation or variation process.

…

(7) In any case where a Council is not satisfied that –

(a) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate in relation to content or time allowed; or

(b) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate with regard to a Council being consulted at the inception of such a proposal; or

(c) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate in relation to the frequency with which a Council is consulted throughout the proposal and decision-making process; …

it may report to the Welsh Ministers in writing and the Welsh Ministers may require the [Local Health Board] to carry out such consultation, or further consultation, with a Council as they consider appropriate.

…

(9) In any case where a Council considers that a proposal submitted under paragraphs (1) and (3) by a relevant Local Health Board would not be in the interests of the health service in its district, it may report to the Welsh Ministers in writing and the Welsh Ministers may make a final decision on the proposal and require the relevant Local Health Board to take such action, or desist from taking such action, as the Welsh Ministers may direct."

30. Therefore, after a referral, the Minister may make "a final decision on the proposal"; and, if he does, that new decision supersedes the earlier decision of the Local Health Board, who must comply with the Minister's decision and comply with any other directions of the Minister.
31. Regulation 27(1) refers to guidance from the Welsh Ministers. The relevant guidance, "Guidance for Engagement and Consultation on Changes to Health Services" ("the Minister's 2011 Guidance"), was issued by the Minister in March 2011, just eight months before the "Together for Health" paper referred to above (see paragraph 2) and as part of the same broad programme. It is therefore unsurprising that the same themes appear. The status quo is again said not to be an option, it being "clear that change is needed if Wales is to have safe and sustainable services that meet modern standards at a time when resources are severely restricted" (paragraph 3).
32. In respect of consultation, the Guidance states:

"4. … It is not necessary to consult formally on every change that is required. Some changes can be taken forward as a result of effective engagement and widespread agreement.

5. However, in cases where substantial change or an issue requiring consultation is identified, the NHS should use a two-stage process where extensive discussion with citizens, staff, staff representative and professional bodies, stakeholders, third sector and partner organisations is followed by a focused formal consultation on any fully evaluated proposals emerging from the extensive discussion phase.

Note for readers on terminology: Although the words 'involve and consult' appear together frequently in the legislation, the question of when formal consultation is required needs further explanation and this is provided later in the document. This document uses the terms 'engagement/engage' to mean the continuous involvement of, or informal consultation or discussions with citizens, staff, staff representative and professional bodies, stakeholders, third sector and partner organisations regarding plans or changes. The terms 'consultation/consult' are used to describe the more formal, focused consultation which is to be employed if substantial or controversial changes are under consideration." (emphasis in the original).

This theme is picked up in Section 5, "Substantial change":

"31. There may be some cases where, exceptionally, the view is taken that a more formal consultation is required. A key issue to be determined as to whether formal consultation is required is whether the change is substantial or not….

32. Where is appears likely that a formal consultation could take place, it is proposed in future that this should be conducted on a two stage basis. The first stage is for NHS organisations to undertake extensive discussion with all the key stakeholders, to include:

the Stakeholders Reference Group

the Professional Forum

the Partnership Forum

the Community Health Council

the Local Service Board

staff and their representative bodies

other key partners as appropriate

33. The purpose of these discussions will be to explore all the issues, to refine the options and to decide and agree on which questions will be set out in the consultation. Only when it is satisfied that this first stage has been properly conducted, should be NHS organisation proceed to formal consultation.

34. Following the first stage described above, a formal consultation period of a minimum of 6 weeks should be sufficient in most cases if the issues have already been fully explored during the first stage and if the CHC agrees.

35. A number of issues should be considered right at the start, because they will impact on decisions to be taken at various stages throughout the formal consultation process. These include:

…

who should be consulted, on what and how?

…

what evaluation of the consultation is going to be undertaken, and how?

when to complete a full equality impact assessment

what is the timetable for both involvement and consultation process

what is the impact on associated services?

…

37. Consultation documents should:

…

show which options were considered during the engagement phase – the NHS needs to ensure that, if a preferred option is specified, this will not be seen as a 'fait accompli';…"

Factual Background

33. As I have indicated, Mr Bowen's main ground of challenge to the LHB's decision in relation to PPH is that the LHB had a predetermined (or, at least, preferred) option with regard to emergency services in that hospital; and the evidential basis for that contention is a document entitled "Rural Health Services Strategy: Spend to Save – 5 Year Framework Summary", dated 9 July 2010 ("the 2010 Document"). That document is headed "Hywel Dda Health Board" (as the LHB then was), and marked "Confidential".
34. I will return to the 2010 Document when I deal with Ground 1, but, briefly:

i) It was stated to be "a precursor to [the LHB's] 5 Year Service Workforce and Financial Framework document", which was "currently being finalised". This financial document was however based upon a "future model of care", which included a shift away from secondary care towards primary and community services.

ii) It envisaged four hospitals in the LHB area: Glangwili as the District General Hospital for the area, Bronglais and Withybush as Rural General Hospitals, and PPH as a Specialist Service Hospital for orthopaedic and rehabilitative services.

iii) It envisaged the closure of emergency services admissions at PPH, with that hospital retaining only a "minor injuries unit" without any medical intake, so that, if a patient required emergency medical facilities, he or she could not attend PPH, but would be required to go to another hospital with an emergency admission facility.

iv) It also envisaged the general centralisation of key services at Glangwili as District General Hospital, including the "centralisation of high risk consultant led services" and "centralisation of paediatric services…", with Bronglais and Withybush retaining only "obstetrics low risk and midwife led care".

v) The key drivers to the model proposed are said to be "quality, safety, workforce, critical mass and financial sustainability". Subject to "capital availability, significant workforce flexibility, resolution to medial retrieval and transportation (Air Ambulance, WAST [Welsh Ambulance Service Trust]) and the political will to support change", it indicated that a cost base reduction of £100m could be achieved.

vi) It stressed that the requirement to have an effective transportation system for patients was a prerequisite for the model. For example, at paragraph 6(d), under the heading "Rural Healthcare and Transportation Arrangements", it stated:

"Our rurality based service model is predicated on having an effective medically led transport and retrieval system for fulfilling safe emergency responses along with patient transport. Our geography and road infrastructure dictates that to move to a safe, high quality and financially sustainable model of services requires this to be in place";

and on the "Revenue savings timeline", there is a note, "Assumes urgent/non-urgent transport solution – inc. urgent medical retrieval".

vii) It indicated that the 5 year financial framework document would be completed by July 2010, with engagement and consultation with the public between July and September, approval of the service model by November, and implementation of the model by December 2010.

35. Mr Bowen submitted that the 2010 Document set out the LHB's firm plans for future services as at July 2010, namely (i) closure of emergency medical intake at PPH, with only a minor injuries unit remaining there; and (ii) centralisation of high risk consultant-led obstetric and neonatal services at Glangwili, with consultant cover at Withybush being removed, leaving only low risk, midwife-led obstetric care and paediatric assessment; and, the LHB erred in law in conducting the consultation process with options that were either predetermined or preferred but undisclosed.
36. The LHB consultation process in fact proceeded as follows.
37. On 21 September 2010, the LHB published its response to the Rural Health Plan 2009, in its 5 Year Framework Document 2010-15, "Right Care, Right Place, Right Time: Every time… – Hywel Dda Rural Health Engagement" ("Right Care"). This document was published as a draft document prior to it going to the LHB Board for discussion. It is marked on each page "Draft V1 21/09/10" (although it is unclear whether V1 meant "Version 1" or "6": as the version number expressly given in the rubric is "1", the former is perhaps the more likely); and the status of the document is expressed as being, "Draft – For discussion and approval for engagement at Board Meeting of 30/09/10", the author being given as Tony Chambers, the LHB Director of Planning, Performance & Delivery.
38. This document concerned delivery of a health service in the area in the context of the national themes set out in the Rural Health Plan 2009.

i) The document expressly intended to set out the LHB's "vision to place service delivery at the heart of your local community responding directly to the challenges set out in the Rural Health Plan [2009]". It said:

"To support our vision for locally based services we will seek significant investment in fit for purpose primary care resource facilities and also ensure our hospitals are fit to care for those people who require a higher level of 'in-hospital' care".

ii) It made clear the financial constraints under which the NHS would operate:

"The Health Minister recently stated that NHS Wales would need to find somewhere between £1.1 and £1.9bn between now and 2014-15 to balance the books. This will clearly place significant pressure on all our services so we need to look at all areas of healthcare and find ways of becoming more efficient and effective."

iii) The document does not generally descend to practical detail, e.g. as to which services particular hospitals might in the future perform. Therefore, whilst it set out the general service model – with District General Hospital, specialist service hospitals and enhanced primary and community facilities – it made no reference to particular services at particular hospitals; for example, it made no mention of emergency services at PPH or neonatal services at Withybush.

iv) The document aspired to changing the service model within three years.

v) The document was approved by the Board on 30 September 2010.

39. In 2011, the LHB issued two documents. First, there was a "Your Health, Your Future" Discussion Document ("the 2011 Discussion Document"), which set out the need for change, in the light of the Rural Health Plan 2009. The foreword stated:

"We have been working closely with our clinicians to look at the potential options we may have for our services. We are now at a stage where we believe this work, if shared more widely, will help shape the options we put forward for consultation in the future. The purpose of the next few weeks is for us to listen to what you have to say.

We will openly share the work we have done so far, listen to any concerns and take into consideration any alternative suggestions.

We need to be absolutely clear that no decisions have been reached either in terms of future services or in terms of the options we will ultimately consult on.

…

Once the listening period is completed, we will analyse the information we have received and this will influence the options we put forward for formal consultation."

40. The document also said (at page 26):

"Once we have completed the consultation process we want to assure you that we will have a robust process of implementing any changes. An Implementation Board will be formed with a chair person independent of the Health Board. This board will be responsible for overseeing and providing scrutiny on the change process." (emphasis in the original).

41. In November 2011, the LHB commenced a Listening and Engagement Exercise, based upon the second document, also entitled "Your Health, Your Future" ("Your Health, Your Future"), which was due to run from 19 December 2011 to 31 March 2012, but was extended to 30 April 2012 to allow more time for participation and responses.
42. Mr Christopher Wright is the LHB Director of Corporate Services, and had overall responsibility for conducting the consultation exercise. In his 16 April 2014 statement, he explains that, following the publication of Right Care in September 2010, the LHB Board discussed the planning of the consultation process at their meeting of 22 November 2010, and the LHB then undertook a process of detailed clinical engagement about future service models including a series of "clinical think tanks" to review models of service design and delivery across all clinical specialities, a clinical summit on 24-25 May 2011 to review clinical services strategy and options, and two option appraisal workshops to appraise clinical options against the benefits criteria agreed at the earlier summit (paragraph 15). On 8 September 2011, the LHB set up a Consultation and Communications Task and Finish Group, which was a forum that met weekly to discuss, design and monitor communications, engagement and consultation plans.
43. In relation to emergency care, the document "Your Health, Your Future" emphasised the preference to have "presence of a senior doctor trained and experienced in emergency medicine 24 hours a day"; and the fact that the way in which emergency departments were configured in the area was not attractive to doctors seeking high profile professional development opportunities. There was no particular reference to the plan or possibility of the PPH emergency facility being closed, as there was in the 2010 Document. However, the document did say:

"On too many occasions, patients have gone to [PPH] in an emergency and required urgent transfer. This is not a safe situation so we need to ensure that everyone is aware of the services available at the hospital.

…

None of our emergency departments comply with the College of Emergency Medicine Guidelines and the only way that this can be achieved in Hywel Dda Health Board is to have a single emergency department. We accept this is not practical in view of our geography and we recognise the need to provide a full emergency department in each county."

Glangwili and PPH are in the same county, i.e. Carmarthenshire.

44. In relation to neonatal care, the document emphasised that none of the Special Care Baby Units ("SCBUs") in the area complied with Royal College of Gynaecologists guidelines; and none was recognised as a Level 2 unit, with the result that "we have to transfer too many women and babies to other hospitals outside Hywel Dda Health Board". It indicated that the LHB considered that a population the size of that in the Hywel Dda area should have a Level 2 facility.
45. The document also indicated, under the heading "What will we do with your comments?" (at page 49):

"Once we have completed the consultation process we want to assure you that we will have a robust process of implementing any changes. An implementation board will be formed with a chairperson independent of the Health Board. Tis board will be responsible for overseeing and providing scrutiny on the change process… Before any change is made the board will need to be sure that the infrastructure is in place to support the change and the alternative service is in place." (emphasis in the original").

46. The LHB commissioned an independent social research organisation, Opinion Research Services ("ORS") to provide advice on the exercise, to publicise the process widely, to undertake its own studies of opinion across the area and to analyse the feedback. In July 2012, ORS produced a 150-page report on the exercise; and there is no suggestion that the report did not accurately summarise the responses and feedback from the exercise. Of the exercise, ORS said this (at paragraph 1.8-1.9):

"1.8 By running such an extensive listening and engagement process in advance of formulating and consulting on its eventual draft proposals, the [LHB] has recognised the importance of giving the public and stakeholders the opportunity to influence the evolution of its thinking at a very early stage. The process has been conscientious and proportional to the importance and controversiality of the issues: in our opinion, the [LHB] has sought to be open, accessible and fair to those wishing to express their views.

1.9 There have been some understandable criticisms of some aspects of the questionnaires used, but the listening and engagement process overall has been substantial and open – particularly in explaining the Board's initial thinking, listening to so many responses through a wide range of routes, and in extending the consultation period to enable more people to share their views."

On 6 August 2012, the LHB Board considered the exercise at a Board Meeting.

47. Later that month, the LHB published its formal consultation document and questionnaire, which they developed with the advice and assistance of ORS. These were accompanied by a Consultation Summary, a Young Person's Summary Consultation document, an easy-to read document entitled "Our plans for better healthcare: Please tell us what you think", a two-page fact sheet specifically on the emergency care proposals, and a number of technical documents including a 53-page "Technical Document – Emergency and Urgent Care (August 2012) ("the A&E Technical Document") and an 87-page Technical Document – Women and Children's Services (August 2012) ("the W&C Technical Document"). In addition, there was a programme of engagement with the public involving an on-line facility and presentations, including presentations directed towards those who might use PPH and Withybush respectively. There was also specific consultation with the CHC. The consultation period was 6 August to 29 October 2012, but this too was extended in two areas (including Llanelli) to ensure that people who wished to respond had a full opportunity to do so.
48. In respect of emergency care, under the heading "Developing the Options", the Consultation Document said that the LHB had used a "robust and clinically led process to develop criteria and weighting" so that any options which "did not meet clinical and other criteria were discounted". It said:

"In advance of the listening and engagement exercise each potential option was measured and scored against these criteria, with only those clinically safe and operationally deliverable Options being put forward for consultation."

That reflected the engagement there had been with clinicians, to which I have referred, and reflected the Minister's 2011 Guidance requirement to set out how options were narrowed.

49. The A&E Technical Document set out in full that options appraisal, which comprised a "long list of [six] options for Emergency Services, generated by clinical staff at a series of events", before the Listening and Engagement Exercise, which included options with one, two, and three Type 1 Emergency Department in the area, and PPH options ranging from upgrading it to a Type 1 facility through maintaining the status quo to downgrading it to a Local Accident Centre only.
50. The Consultation Document proposed two options. Option A was for one Emergency and Accident Department at Glangwili, with consultant-led 24 hour service, including assessment and treatment of acute illness and on-going emergency treatment with dedicated facilities including beds; with local 24 hour accident centres at Bronglais and Withybush, and a nurse-led local accident centre with no emergency admissions at PPH. Option B proposed Emergency Departments and Accident Centres at Glangwili, Bronglais and Withybush, with an Emergency Medical Admission Unit in each of those hospitals, and at PPH. The difference between the options so far as PPH was concerned was made clear in the accompanying questionnaire:

"Option A:… [PPH] will no longer have an emergency medical admission unit but will provide a nurse-led Local Accident Centre for minor accidents.

Option B: … [PPH] will have an emergency medical admission unit and will also provide a nurse-led Local Accident Centre for minor accidents."

Option B described what was planned for PPH, namely a Local Accident Centre and Emergency Medical Admission Unit providing "a similar level of service to the current department". However, unlike the pre-existing scheme, with either option, patients would be assessed and treated by Emergency Nurse Practitioners, and there would be no physical presence of doctors. The nurses would have only "telemedical" support from doctors at Glangwili, who would be available on the telephone.

51. The document explained why PPH was unable to have a full, Type 1 facility, namely that, following full consultation, a decision was taken in 2006 to split emergency and planned surgical services between Glangwili and PPH, with the result that, although there was an emergency admissions unit at PPH, all emergency surgical activity was done at Glangwili and PPH did not have the relevant back up specialities to support such a Type 1 department. As a result, (i) 80% of those who attended PPH's emergency department were minor cases, and (ii) under a protocol dated 2 February 2007, WAST did not take major injury cases to PPH, the remaining 20% of patients being major cases who (as I understand it) found their way to PPH other than by ambulance.
52. Option B was stated to be the LHB's preferred option. In the questionnaire, there was a box for "Another alternative" to Options A and B, with a text box to explain the preference.
53. In respect of neonatal care, it was said that, to reach a critical mass of births and meet all modern service standards, the LHB would need to focus facilities; although it was proposed to keep some in-patient maternity care in each county. It was proposed that a Level 2 Neonatal Unit would be developed alongside a paediatric High Dependency Unit, at either Glangwili or Withybush. Glangwili was the LHB's preferred option, because (i) there were more births at Glangwili than at Withybush; (ii) it was doubted whether, if chosen as the Level 2 facility, Withybush would have the critical mass of births (due to mothers from the Carmarthen area then choosing to have their births at Singleton rather than Haverfordwest); (iii) Glangwili was generally more accessible; (iv) for some high risk babies, Glangwili had better access to the Level 3 facilities at Singleton.
54. It was proposed that:

"• Consultant-led obstetric services will continue to be provided in Bronglais, Glangwili and Withybush Hospitals.

• We will continue to have paediatric assessment units in Bronglais, Glangwili and Withybush Hospitals.

• Bronglais and Withybush Hospitals will continue to have short stay paediatric units open all day every day."

55. However, it said:

"There is the remote possibility that we may be unable to recruit sufficient doctors to the service even if one of the above options [i.e. Glangwili or Withybush having a Level 2 facility] was adopted. In such a circumstance we might need to consider an alternative option with inpatient paediatric services delivered on only two sites see technical documents (listed in Annex B)…

One site would be Bronglais Hospital in the north and there would be a choice for the south of Glangwili (our preferred option) or Withybush Hospitals.

We would only consider this option as a very last resort if emergency transport solutions were in place and our clinicians were satisfied it was safe to implement. We would like to know which option you would prefer in such circumstances…".

56. The consultation document, questionnaire and supporting technical document made clear that it was intended that consultant-led obstetric services in Withybush would, in any event, continue.
57. The questionnaire asked whether the consultee preferred Glangwili or Withybush for the site of the Paediatric High Dependency Unit, the Level 2 Neonatal Unit and the Complex Obstetric Unit (which were to be sited together), with a third box for "Don't know or it doesn't affect me". In the event that it were possible to provide inpatient services at only one hospital in the south, there was a separate set of boxes for whether that should be Glangwili or Withybush.
58. Again, the LHB commissioned an analysis of the results of the exercise from ORS. Again, there is no suggestion that this report did not accurately portray the responses received. They expressed "overwhelming support" for Option B, rather than Option A; but there was local opposition to the proposal for a nurse-led unit with a wish by some to restore a full Type 1 facility. Mr Wright said that the LHB recognised that there was very little support in Llanelli for Option B, the LHB's preferred option; but the LHB had to take into account the wider picture, and provide a sustainable network of services which took into account, not just the facilities within the LHB area, but also the service available at the Regional Trauma Centre for South West Wales at Morriston which is only 11 miles from Llanelli The detailed feedback from the whole area, as analysed by ORS, supported the LHB's preferred option for emergency services (16 April 2014 Statement, paragraphs 85-89).
59. With regard to women's and children's services, the responses expressed "very strong support" for the LHB proposals. The ORS Report stated that "Glangwili [was] very generally supported as the most appropriate location in the south", albeit there was strong opposition in Pembrokeshire based mainly on worries about the future of Withybush SCBU and paediatric services in the county (paragraph 25). As Mr Wright acknowledged, the results of the responses "show the depth of feeling of the local residents around Withybush Hospital"; and, as the ORS reported, "[T]hose who live closer to Withybush would prefer services to be located there" (16 April 2014 Statement, paragraph 127).
60. The ORS report said, of the consultation process:

"As a research practice with wide-raging experience of controversial statutory consultations across the UK, ORS is able to certify that both the listening and engagement and formal consultation processes undertaken by [the LHB] have been both intensive and extensive. Overall, there is no doubt that both exercises have been conscientious, competent and comprehensive in eliciting the opinions of stakeholders and many members of the public."

61. The LHB Board considered the consultation responses as summarised in the ORS report and a further report by the then LHB Director of Planning & Operations (Mr Mark Brandreth) and Director of Clinical Services (Dr Phil Kloer) ("the Directors' Report). No particular issue is taken with the contents of that report, as such; although of course the Claimants do not accept its conclusions.
62. The Directors' Report addressed the equality impact of the proposals. In respect of the PPH proposal, it said (paragraph 8.5):

"The Assessing for Impact exercise articulated the demography and socio-economic make up of the [LHB] area. The responses received through the consultation process highlighted potential equality impacts that will need to address in the implementation phase. These include:

…

Potential Negative Impacts

• For any additional transfers, increased travel times with potential impact on the elderly disabled, young people and families and low income households

• Staff relocation with potential to affect staff from different equality strands.

The [LHB] is committed to mitigating the potential negative impact by providing care in the community and in primary care whenever possible and by providing tangible solutions to improving transport."

In respect of the neonatal proposal, it said (paragraph 9.5):

"An initial equality impact assessment has identified the following positive and negative impacts. Further detailed assessment will be made as part of the implementation process.

…

Potential negative impacts

• Increased travelling distances depending on location – financial implications

• Family separation and potential adverse consequences

• Single parent families and impact on other dependents

• Staff relocation with potential to affect staff from different equality strands

Every effort will be made to mitigate the potential negative impacts. Families will be supported if they have to deliver their baby in a hospital that is not the nearest one to where they live."

63. With regard to PPH, having set out the various issues, it asked for the Board's approval, as follows (paragraphs 8.7-8.8):

"8.7 The Board is asked to approve

Continued work towards the implementation of Option B so that there is:

• 24/7 Emergency Departments co-located with purpose-built clinical decision and assessment facilities at Bronglais, Glangwili and Withybush Hospitals; and

• To adopt the terminology that will be standardised across Wales. The final decision is yet to be made but to note that it is likely that services that are not full Emergency Departments will be called Urgent Care Centres.

At [PPH] a clinically led group has started to explore the unscheduled care services needed in primary care and at the hospital, and in particular a reshaping of 'front door' services.

The Board is asked to approve for this clinically led group to continue and to:

• Deliver an integrated service through a new model of secondary and community care. This will involve doctor supported, primarily nurse delivered services but will sit within an integrated model of GPs, pharmacists, paramedical and community services teams;

• Deliver a 24/7 emergency medical assessment and admission service; and

• Use this work to inform service delivery models at other sites within the Health Board.

8.8 The recommendation is the same as the original proposal for Bronglais, Glangwili and Withybush Hospitals, which means that emergency departments will be retained.

For [PPH], the concerns of the public and the clinicians have been recognised and the recommendation is now broader and approves a clinically led group to re-design the unscheduled care services for the hospital and the community. The recommendation supports a doctor supported, nurse delivered service, but as a part of a new model of secondary and community care within an integrated service that will include a 24/7 medical assessment and admission service."

64. However, the CHC were unhappy and concerned that the proposal, whilst retaining emergency admissions at PPH, was to be delivered by nurses with doctor support by telephone but without doctor presence. The then chair of the CHC (Mr Tony Wales) made these concerns clear at the LHB meeting on 15 January 2013, as shown by the minutes. Dr Kloer responded by saying that the vast majority of attendances at the emergency department were for minor injuries.
65. The Board gave its unanimous approval in the terms sought by the Directors' Report.
66. In respect of neonatal services, the Directors' Report set out the reasons why Glangwili was preferred to Withybush as the consolidated centre for both obstetric and paediatric services. It summarised the consultation responses, before setting out (in paragraph 9.7) a list of recommendations for which it sought the Board's approval, including the aspiration to achieve a Level 2 neonatal service at Glangwili, subject to availability of trainee doctors to cover extra rotas; and the establishment at Glangwili of a new Complex Obstetric Unit to manage high risk births with a Level 2 Neonatal Unit alongside a Paediatric High Dependency Unit. The Board were also asked to approve:

"• Retain consultant obstetric services at Withybush…

• Continue with provision of in-patient paediatric services at… Withybush…

• If recruitment problems mitigate against safe and sustainable acute Paediatric services in both Glangwili and Withybush… locate a single service in Glangwili… for the South of Hywel Dda".

67. On behalf of the CHC, Mr Wales is recorded in the minutes of the 15 January 2013 meeting as follows:

"Mr Wales commented that this has been a particularly difficult issue for the CHC particularly around training rotas and sustainability, however they would wish to retain the status quo and for there to be equal provision across the 3 sites [i.e. Glangwili, Bronglais and Withybush]. In terms of the Level 2 neonatal service, a good deal of support has been received for developing this at Withybush Hospital which the board should take into consideration, particularly given the accessibility of Singleton Hospital [in Swansea] from Carmarthen, and concerns over knock on effects to paediatric cover at Withybush…"

68. He also raised concerns about the restrictions on neonatal transport service to 12 hours a day, which would need to be extended to 24 hours per day.
69. Mr Martin agreed that making decisions against the backdrop of Royal College standards and issues of recruitment was difficult; and the achievement of a Level 2 neonatal service therefore remained aspirational, whilst:

"Dr Kloer confirmed the intention to retain paediatric and obstetric services in Withybush… regardless of the outcome of consultation…".

Mr Wales was also assured that the Neonatal Network was working towards extending the transport operational hours.

70. Again, in relation to neonatal services, the Board approved the recommendations in the terms sought by the Director's Report.
71. In respect of both emergency care and women's and children's services, the implementation of the decisions was to follow a gateway process, so that changes would only be implemented when it was judged that it would be safe to continue. Implementation was to be effected through an Implementation Board.
72. On 25 February 2013, the CHC referred the LHB's proposals for emergency care at PPH and neonatal services at Withybush to the Minister. As we have seen, in respect of those proposals, they were particularly concerned about (i) the absence of doctors from the emergency care facility at PPH, which was to be nurse-led supported only by doctors by phone; and (ii) the upgrading of the neonatal care at Glangwili to Level 2, with the potential loss or downgrading of women's and neonatal services at Withybush.
73. Thus, the covering letter to the Minister indicated that a core ground for the referral was that:

"… a number of the healthcare configurations are deemed unacceptable and not in the best interests of patients and the public, particularly:

• Women's and children's, neonatal, SCBUs, obstetrics and paediatric services

• the A&E service at [PPH]…"

74. However, the CHC were also concerned that the consultation process adopted did not meet appropriate standards. Other core grounds therefore concerned the consultation process adopted; and the paper which accompanied the letter was entitled, "Issues, Opinions and Concerns regarding the [LHB's] 'Your Health Your Future' Consultation on Healthcare Services". The CHC concluded (on page 4):

"In light of these concerns [the CHC] remains unable to endorse the proposals given the (as yet unresolved) potential risks which are described in more detail within the report."

75. The Minister (then, Lesley Griffiths AM) responded on 11 March 2013, stressing that:

"Where particular proposals are judged not to be in the best interests of health services in the area, the CHC must propose alternative solutions for providing safe and sustainable services to their local community";

and indicating that she required the LHB and the CHC to carry out further dialogue, with a view to resolving matters between them and referring any outstanding matters back to her by 31 March (subsequently extended to 19 April 2013). In the meantime, following protocol correspondence, on 15 April 2013 the First Claimant served a judicial review challenging the LHB decision of 15 January 2013.

76. The CHC and the LHB managed to resolve some but not all issues; and the CHC re-referred the matter to the Minister, by now Mark Drakeford AM. The covering letter is again helpful in identifying the CHC's areas of concern. There were two specific issues, which the CHC formally referred back to the Minister. First, there were continued concerns about the consultation by the LHB. The complaint related to the adequacy of the consultation with the public generally, and not with the adequacy of the engagement of the LHB with the CHC. Second, reflecting that which they had previously expressed, there was concern about the service change proposals in two material respects:

i) The CHC said they could not endorse "… the LHB's proposals for a nurse-led injury service" at PPH. In context, it is clear that their concern was the absence of doctors, not that nurses would perform most of the assessment and treatment. The CHC proposed "an alternative GP or doctor led model", with doctors available at the facility. They said (at page 24):

"Our alternative model would therefore suggest that such an urgent care centre at PPH would be staffed by a fully trained GP (with experience in A&E) or by a doctor with relevant skills."

ii) The CHC said they "did not support the development of a neonatal Level 2 unit at [Glangwili], but instead recommends a greater working relationship with [Morriston]". They said that they remained of the opinion that "if the LHB proposals are fully implemented, it will likely result in a loss of maternity services in their entirety at Withybush…".

77. The Minister responded on 31 May 2013, saying:

"I propose to make a determination on the proposals which the [CHC] has stated it cannot support as set out in its referral, as follows:

Neonatal Services – specifically in relation to Glangwili and Withybush Hospitals.

A&E Services at [PPH]."

78. He said he would ask the Chief Medical Officer for Wales to set up a Scrutiny Panel to consider these issues and make recommendations. He offered the CHC a further opportunity to make any further representations they wished to make. He referred to the Flatley 1 claim, and said that he may have to defer consideration of the issues pending the conclusion of that application. In relation to the concerns expressed about the LHB consultation, the Minister said:

"The [CHC] also reported its dissatisfaction with the consultation process undertaken by the [LHB]. The vast majority of the [CHC's] referral relates to the [LHB's] consultation with the wider pubic and other bodies, as opposed to its consultation with the [CHC], and would not therefore appear to be within the scope of Regulation 27(7) of the [2010 Regulations]. If the [CHC] is seeking to report on the [LHB's] engagement with the [CHC], you may wish to refine this particular element of the report and resubmit it to me as soon as possible….

Although the [CHC's] report on the [LHB's] consultation with the wider public is outside the remit of the Regulations and therefore not something on which I shall make a determination. Once the current round of consultations across Wales has been completed, I do intend to commission a 'lessons learned' review of the different consultation exercises and will ensure that your views are considered as part of that process".

Something appears to have gone wrong with the wording of the final paragraph; but it seems common ground that that paragraph meant:

"… [T]he [CHC's] report on the [LHB's] consultation with the wider public is outside the remit of the Regulations and therefore not something on which I shall make a determination. [However,] once the current round of consultations across Wales has been completed, I do intend to commission a 'lessons learned' review of the different consultation exercises and will ensure that your views are considered as part of that process".

79. On 13 June 2013, the CHC wrote to the Minister accepting the process outlined by him. On 20 June, they wrote again with further representations on the neonatal services issue and the emergency care issue at PPH. The covering letter added:

"In addition we enclose some further information regarding what we perceive to have been significant shortcomings in the listening and engagement and consultation processes between this CHC and the… LHB. We send this in the knowledge that you will be separately commissioning a report upon 'lessons learned' upon the consultation of the current round of consultations across South Wales and we hope that this will be meaningful in this latter regard; we are not asking you to investigate this particular aspect at this time unless you should so wish, nor to reopen the consultation process."

80. A Scrutiny Panel, comprising experts in neonatal services and emergency care and a former Deputy Chief Medical Officer for Wales, was duly convened ("the Panel"). In September 2013, the Panel produced two reports.
81. The Panel's first report concerned emergency care at PPH. It rejected the LHB proposal, and in substance accepted the CHC proposal for a model which included doctors at the facility which it recommended to the Minister. On 24 September 2013, the Minister announced his own decision, in line with that recommendation:

"… The Panel strongly supported the case for replacement of accident and emergency services at [PPH]. It unanimously proposed that an emergency nurse practitioner unit, supported by general practitioners, should form the future model of care at that hospital. I have carefully considered this expert advice and fully accept it. I have therefore determined that this form of service will be implemented…".

82. The Panel's second report concerned neonatal services. However, the Panel considered that these could not be divorced from obstetric and midwifery services, because retention of a full consultant obstetric service would necessitate retention of neonatal units equipped and staffed to deliver special care with direct access to specialist neonatalists. Given the low patient volume, the Panel were concerned about recruiting and retaining appropriate staff (paragraph 5.7.1). Furthermore, the Panel said (at paragraph 7.1.1):

"Newborn needs can be accommodated, without need for a neonatal unit, if a low-risk maternity service provided through a midwifery-led unit, is accompanied by emergency medical obstetric cover, staff trained in newborn resuscitation and stabilisation, and clearly defined pathways for in-utero and postnatal transfers… From a neonatal perspective centralisation of consultant maternity services in a single centre in Hywel Dda would provide improved patient throughput. Enable centralisation of neonatal services, facilitate stable and improved staffing, maintenance of staff skills, more efficient resource utilisation, and would benefit infant care and outcomes. "

83. The Panel therefore reached only a provisional conclusion, recommending that the Minister seek confirmation from the LHB as to the proposed maternity (obstetric and midwifery) services planned for the entire area.
84. On 24 September 2013, the Minister issued a determination accepting that recommendation, and asking for further engagement between the LHB and the CHC to clarify the nature and delivery model of such services in the area taking into account the Panel's report and provisional conclusion. The Minister said:

"In addition, the [LHB] is required to carry out an analysis of the need for, and an implementation plan for the provision of, improved neonatal transport services to support the changes in neonatal care at any of the Hospitals."

The Minister said that he would ask the Panel to reconvene and provide him with final advice once that work had been completed.

85. In response, the LHB submitted a further report to the Minister on 9 December 2013. This proposed stand-alone midwife-led maternity units at Withybush and Bronglais. The CHC expressed disappointment that the LHB had significantly departed from the original proposal of retaining three obstetric units in the area. On 19 January 2014, the reconvened Panel submitted its final advice to the Minister, which recommended a Level 2 neonatal facility at Glangwili (as proposed by the LHB, and opposed by the CHC), and that neonatal services should be centralised there "providing the appropriate neonatal care for all babies in the Hywel Dda Health Board area" (paragraph 28). Withybush would continue with a midwife-led only service. The Minister agreed with the Panel's recommendation that there be phased implementation, which would involve the LHB showing that (i) the units would be developed in accordance with guidance for such units, (ii) a robust safety net arrangement was in place to provide midwives with skilled assistance in the event of an unexpected emergency and (iii) robust emergency transfer arrangements were in place until the new emergency medical retrieval system was fully operational.
86. That is the factual background to the claims. I can now turn to the grounds of challenge.

Flatley 1: Grounds of Challenge

Ground 1A: Failure to Consult with an Open Mind

87. I have already referred to the relevant statutory scheme, and its requirements for consultation.
88. In respect of the general law, the following propositions are uncontroversial:

i) Consultation must be carried out fairly and properly.

ii) To be fair and proper, consultation must be performed by the decision-maker with an open mind, and at a formative stage (R v Brent London Borough Council ex parte Gunning (1985) LGR 168, and R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at [108]). A decision-maker cannot have a predetermined option, such that consultation is a sham. He may have a preferred option; but he must disclose that to potential consultees as such "so as to better focus their responses" (R (Sardar) v Watford Borough Council [2006] EWHC 1590 (Admin) at [29] per Wilkie J).

iii) However, the decision-maker is entitled to formulate the options upon which he wishes to consult, without consultation: fairness does not require there to be "pre-consultation consultation" (R (Forest Heath District Council) v Electoral Commission Boundary Committee for England [2009] EWCA Civ 1296 at [33] per Sir Anthony May P, albeit in a somewhat different statutory context; see also [11] and [51]), or a "first round of consultation" on the options to be consulted upon (R (Tinn) v Secretary of State for Transport [2006] EWHC 193 (Admin) at [32] per Bean J). To have an open mind does not mean to have an empty mind (R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2011] EWHC 2986 (Admin) at [16] per Owen J).

iv) The consultation documents must be clear to the general body of interested persons, and present the issues fairly and in a way that facilitates an effective response (R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at [8]-[14]).

v) It is a matter for the court to decide whether a fair procedure was followed: its function is not merely to review the reasonableness of the decision-maker's judgment of what fairness required (R (Osborn) v Parole Board [2013] UKSC 61 at [65] per Lord Reed). However, if it is alleged that a consultation process is unfair, clear unfairness must be shown: it must be shown that the error is such that something has gone clearly and radically wrong, such that it cannot be said that there was any proper consultation (R (Greenpeace Limited) v Secretary of State for Industry [2007] EWHC 311 (Admin) at [63] per Sullivan J as he then was).

vi) The purposes of requiring fairness in procedural matters such as consultation include to ensure high standards of decision-making by public bodies, to enable responses that will best facilitate a sound decision and to avoid the sense of injustice which a person affected by a decision may otherwise feel (Osborn at [67]-[70]) per Lord Reed).

89. Mr Bowen submitted that, prior to any consultation with the public, the LHB had developed a clear plan – amounting to a predetermined course (his primary case) or, at least, a clear preference – for reconfiguration of emergency care at PPH, set out in the 2010 Document. That document was clearly not a mere initial draft, but represented the plan which the LHB proposed or were minded to adopt from the outset.
90. In support of that submission, he relied upon the following:

i) The language of regulation 27(3) which, in relation to consulting the CHC, says that it must consult "at the inception" of consideration of any proposal; and section 5 of the Minister's 2011 Guidance (quoted at paragraph 32-33 above) which urges extensive discussion with stakeholders "where it appears likely that a formal consultation could take place".

ii) The language used in the document. It was not marked "draft", with any other rubric which suggest that it was a mere work in progress. It is not written in the conditional: the service changes are almost always described positively, using the word "will".

iii) The document is fully worked up, with proposals being costed, and patient flows forecast and impacts on staff levels assessed in some detail, disclosing a single overarching plan, rather than a number of competing options under consideration.

iv) There is no reference to any options being under active consideration. No other drafts have been produced by the LHB to demonstrate that other options were being considered; nor do the LHB witnesses refer to any such drafts in their evidence.

v) There is evidence that the 2010 Document was used as the basis for significant discussions with key stakeholders. Mr Wright states that the key purposes of the 2010 Document was to inform discussions with the Welsh Government in relation to future funding, and to provide a starting point for discussions with clinicians as to service configuration (16 April 2014 Statement, paragraph 11).

vi) Mr Wright also says that "the [LHB's] thinking changed throughout the consultation process and the proposals set out in the draft 2010 Document were revised considerably" (16 April 2014 Statement, paragraph 13). Mr Bowen submitted that that suggested that the 2010 document represented the Board's thinking (and, thus, preferred options) in July 2010.

vii) Mr Bowen relied upon evidence of two conversations about this document. First, there is the statement of Mr Christopher Overton, who is a Consultant Obstetrician & Gynaecologist at Withybush, and an organiser of a group called Save Withybush Action Team ("SWAT") formed in 2006 to lobby against proposed changes to service provision at Withybush similar (Mr Overton says) to that now proposed (20 December 2013 Statement, paragraph 3). Mr Overton says that, in August 2010, he had a conversation with the LHB Director of Operations, Mr Chambers, who confirmed that the 2010 Document had gone to the Welsh Assembly's Director of Health and Social Care; and that "funding was almost finalised" (28 May 2014 Statement, paragraph 7).

viii) Ms Nia Griffith is Member of Parliament for Llanelli. Health is a devolved function, but of course Ms Griffith has a significant interest in the services provided by PPH, as a Westminster constituency MP. She says (6 September 2013 Statement, paragraph 4):

"I was telephoned by the then Vice-Chair of the Board Janet Hawes on 30 July 2010, shortly after the document had been leaked. It had been obtained by the press in Pembrokeshire and contacts passed on a copy to me. Janet Hawes told me it was a mistake, and that it should not have been released, and that the board intended to work further on the document. She did not refute any of the contents of the document or imply that the information in the document was incorrect, but rather gave the impression that it had been released prematurely. The particularly unusual feature was that it is one of the very few, if not the only time that the Health Board proactively contacted me to speak to me about this issue."

91. Mr Bowen submitted that, insofar as the 2010 Document was a plan with regard to the future of emergency care at PPH, it was predetermined. Insofar as it was a preference, it was not disclosed to the public as such, either the listening and engagement stage, or the formal consultation stage.
92. Tenaciously as these submissions were made, I cannot accept them for the following reasons.
93. The First Claimant seeks to challenge the decision of the LHB as to emergency care service provision at PPH. As Miss Carss-Frisk submitted, with irresistible force, whatever legal impropriety there may have been with regard to the LHB consultation process, the claim in respect of the LHB's decision is now academic and empty; because that decision has been superseded by the Minister's decision which (subject, of course, to the challenge in Flatley 2) the LHB is legally bound to implement (see paragraph 29-30 above). It is not the practice of this court to entertain claims that are academic and do not stand to have any practical effect (see, e.g., R (Zoolife International Limited) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) at [32]-[37] and the cases referred to therein). The fact that the LHB decision was irrelevant after the Minister made a final decision on referral to him was marked by both parties to the case (in my view, understandably) pressing the Minister to make a determination on the referral, and not wait for the ultimate conclusion of Flatley 1 (see Frances Duffy Statement 29 April 2014, paragraphs 19-21). Given that a final decision by the Minister supersedes a decision of the LHB with regard to proposals for service changes, and the Minister in the event decided to overrule the LHB decision with regard to emergency services at PPH, for the Minister to have awaited the outcome of a judicial review that challenged the earlier decision would have been unwarranted and would have led to unnecessary delay.
94. That is sufficient to dispose of this ground – and the other grounds on which the LHB decision is challenged – by refusing permission to proceed. However, as the lawfulness of the LHB consultation is raised by Mr Bowen in the context of the challenge to the Minister's decisions, I shall proceed to consider the merits of Ground 1A.
95. I do not consider those merits have any force.
96. Although Mr Bowen recoiled from making it in terms, the First Claimant's allegation is tantamount to one of deceit on the part of the LHB, i.e. knowing that they had a firm and fully developed, predetermined or preferred plan, they pressed forward with a time consuming and costly consultation exercise without disclosing that fact. Indeed, the LHB note in their Detailed Grounds that the Claimants' claims in respect of this issue are in substance claims of bad faith (see paragraph 73 of their Consolidated Detailed Grounds)
97. However, the only evidence upon which Mr Bowen relied was the 2010 Document. In respect of that document, it proposed the closure of emergency admissions at PPH altogether. That could not have been a predetermined option, given that it was not the preferred option by the time of the formal consultation or the option chosen by the LHB at the end of the process. But nor, in my firm view, was it (or any other proposal in that document, including the proposal for the reduction in maternity services at Withybush) on the evidence even arguably a preferred option. There is no evidence that that document (or any proposal in it) was even considered, let alone approved, by the LHB Board. All of the evidence is to the contrary. The 2010 Document appears to have been drafted by one or more of the Executive Directors, who are of course on the LHB Board. However, Mr Wright says (16 April 2014 Statement, paragraphs 9-12):

"9. … The draft 2010 Document was an initial draft prepared by the [LHB]. It was never finalised and no concluded view had been reached by the [LHB] that the models outlined in the draft 2010 Document were the solutions that should be adopted.

10. Before the draft 2010 Document could be considered by the Board of the [LHB], it was leaked without knowledge, consent or authority of the[LHB] in early August 2010…. The draft 2010 Document was widely distributed by persons unknown at this time with its purpose misinterpreted and misrepresented.

11. It must be remembered that Health Boards have to plan and look at potential models for the future and the draft 2010 Document was precisely that. The key purposes of the draft 2010 Document were to:

11.1 inform early discussions with the Welsh Government in relation to future funding; and

11.2 provide a starting point for discussions with the [LHB's] clinicians on how we could deliver safe, sustainable, high quality services within the constraints of limited resources, four hospital sites and significant recruitment issues.

12. The draft 2010 Document set out what the potential configuration of services would look like if the [LHB] was to adopt a Royal College standards driven model for all services. It highlighted a number of areas where significant service reconfiguration would be required if such a standards model was to be adopted. The document highlighted what the implications for the [LHB] would be in order to meet the various Royal College standards." (emphasis added)

No evidence sensibly controverts or is inconsistent with that. I accept Mr Wright's evidence: in particular, I accept the evidence that the document never went to the LHB Board, and was never approved or even considered by it. This draft was a document prepared by Executive Directors for the purposes identified by Mr Wright, and particularly for the purposes of early discussions with the Welsh Government concerning long-term financial requirements. For those purposes, it contained some assumptions – it had to – but these were not "preferred options" of the LHB. Such options were very far from even being formulated. I have set out above the lengthy exercise – including, in particular, clinical engagement – involved in such formulation. The document no more than formed a starting point for that engagement.

98. In respect of the other matters upon which Mr Bowen relied:

i) Regulation 27(3) concerns the LHB consultation with the CHC, not public consultation: but in any event, it refers to consultation at the inception of consideration of a proposal. As at 9 July 2010, for the reason I have given there was no proposal upon which to consult. Nor does the Minister's 2011 Guidance assist Mr Bowen: it is clear from the note on terminology that, where the Guidance uses the term "consultation", it generally means the second formal stage, after the listening and engagement (i.e. the formulation) stage. It is clear that it is used in section 5 in that sense (see, e.g., paragraph 33). The Guidance does no more than set out two stages – formulation of proposals and consultation on them – to reflect the general law.

ii) It is true that the 2010 Document does not have the word "draft" or the like upon it. However, it seems to me more likely that that is because it had not even reached the stage of being a draft considered by the Board: final documents of the LHB (and even drafts that go to the Board), as I have indicated, appear to have their provenance on their face.

iii) I do not consider the absence of the conditional tense is helpful to Mr Bowen. The document set out a model for the purposes identified, and with the caveats made, by Mr Wright.

iv) The document did not have alternative options for future services, because it was drafted before options had been considered. The model was the basis of discussions – Mr Wright says, early discussions – with the Welsh Government on future funding. I do not consider the detail and costings, such as they are, to be inconsistent with such a purpose. Some dialogue with the Welsh Government would have been needed as to long-term funding before or at the same time as service options could be sensibly discussed with clinicians. Mr Wright says that the document was used to start discussions with clinicians. The 2010 Document was drafted before any discussions had taken place with either the Welsh Government or clinicians. It was clearly drafted at the formulation stage so far as service options were concerned; and, indeed, at a very early part of that stage.

v) Mr Overton's evidence is entirely consistent with what Mr Wright says. Mr Overton says that, at a Withybush staff meeting in October 2010, the 2010 Document was dismissed as something "prepared in a hurry to satisfy the Welsh Assembly Government but was not meant to be a final document" (20 December 2013 Statement, paragraph 8). There was, Mr Overton says, "a blanket denial that the [2010 Document] was anything other than a defunct draft…" (ibid, paragraph 10). All of that is entirely consistent with the document being prepared for early discussions between Executive Officers of the LHB and of the Welsh Government Executive Officers in relation to future funding. The embarrassment of the Deputy Chair of the LHB in her discussions with Ms Griffiths is likewise not inconsistent with Mr Wright's evidence. It would be embarrassing for the LHB to have leaked a document drafted by Executive Officers and never considered by the Board, that was intended for only limited purposes; embarrassing, not because it set out the Board's predetermined or preferred option for future services, but rather because it did not – but may wrongly have been taken by others to do so.

99. I have read all the evidence submitted on behalf of the First Claimant with particular care. I understand that many people who live in West Wales are suspicious of the LHB and of the proposals they have made for future health services in their area, particularly in respect of emergency care at PPH and neonatal services at Withybush. However, there is simply no evidential basis for the contention that the 2010 Document set out preferred options for those services, predetermined or preferred by the LHB. The document, at most, set out the initial views of some of the Executive Officers, never endorsed nor even considered by the LHB Board. There is no legal requirement to notify interested parties of such initial thoughts, the formulation of which is far from complete.
100. For those reasons, I do not consider there is any proper evidential basis for the contention that any part of the LHB consultation process was unlawful, because the LHB approached it with less than an open mind. That too is a sufficient ground for refusing permission for this ground to proceed.
101. Furthermore:

i) The Directors' Report to the LHB Board had an appendix which specifically considered whether the legal principles as to consultation had been complied with, and concluded that they had. The report that was prepared for the LHB Board's meeting of 2 August 2012 in respect of the listening and engagement phase had a similar report. That, of course, is not conclusive: but it indicates the care with which the LHB took their consultation obligations.

ii) As I have indicated, ORS (an independent company) considered both the listening and engagement phase and the formal consultation to be fair and proper (see paragraphs 46 and 60 above).

iii) After the event, in March 2013 the consultation exercise was the subject of an external audit by the Consultation Institute, and was awarded a Certificate of Best Practice.

iv) Even if (contrary to my very firm view), the LHB did have a preferred option in respect of certain services as set out in the 2010 Document as at July 2010, the evidence is that this document was not kept confidential for more than a few days. It is dated 9 July 2010. On the basis of the evidence of Ms Griffith referred to above, it was clearly leaked by the end of that month. The evidence is that it was, then, widely distributed. The perceived preferred view was therefore well-known. Indeed, as I have indicated, the problems did not stem from the fact that the document indicated a predetermined or preferred view of the LHB, but that it did not indicate such a view – although many refused to believe the denials of the LHB to that effect.

102. For all those reasons, I do not consider Ground 1A arguable. I do not consider the LHB consultation, or any part of it, arguably unlawful on this basis.

Ground 1B: Deferral of Issues

103. Mr Bowen submitted that the consultation process breached the requirement to consult at a formative stage in another, discrete respect. The LHB made their decision in respect of future emergency care and neonatal services on 15 January 2013 leaving over a number of issues to the implementation phase, namely (i) safety and risk, (ii) transportation of patients and (iii) staffing (in particular, whether sufficiently qualified nurses could be recruited and trained to staff the model the LHB adopted in January 2013). These issues cannot be severed from the question of which arrangements were appropriate in principle, he says, because these issues were of such importance that they might call into question the advisability and viability of the model adopted. In determining to proceed with the option it did, at a time when these issues which might affect the appropriateness of an option, the LHB effectively meant that the LHB continued with a closed mind, and robbed interested parties of being consulted properly on the deferred issues. In making that submission, he relied on R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at [32], to the effect that it is procedurally unfair to operate a consultation process in such a way that interested parties lose their only real opportunity to present their case.
104. The various strands of this submission need to be teased out slightly. The ground is relied upon only in relation to Flatley 1, i.e. in respect of the LHB decision concerning emergency care at PPH; although Mr Bowen seeks to use the argument in support of his contention that the Minister's decisions in relation to that, and neonatal care in Withybush, were flawed.
105. However, I do not consider that the strands, looked at individually or in aggregate, are weight bearing.
106. Mr Bowen's submission is based upon the suggestions that (i) interested parties did not have an opportunity to make representations on these issues during the consultation process, and (ii) the LHB Board (and, in his turn, the Minister) did not take these issues into account when determining the options to pursue. I can accept neither proposition.
107. So far as the LHB is concerned, as Miss Carss-Frisk submitted, the Directors' Report set out the responses to the consultation received ("… in particular ones from SOSPPAN… "), and set out the proposed action, on each of the matters Mr Bowen relies upon. Transportation was identified as a particular issue. It was said that the model would mean very little change for the vast majority of patients, because it was proposed to keep open emergency admissions; and the implementation process would involve WAST and any concerns that they had could be addressed then. The safety and risk of a nurse-only unit was, of course, at the heart of the consultation. In any event, the final decision of the Minister reinstated doctors in the unit, so that the impact on any potential patients will be much smaller, and very small in absolute terms.
108. Similarly, neonatal services at Withybush. The Directors' Report addressed each of the issues relied upon by Mr Bowen, including, in turn, "Transport", "Safety & Standards" and "Staffing". The position had, of course, changed by the time of the Minister's decision, because the Panel had suggested midwife-led maternity services at Withybush, which the LHB had adopted. However, the Panel considered the transportation and staffing issues, and made express provision for them in its recommendations, adopted by the Minister (see paragraph 82 and following above).
109. In each case the LHB and then the Minister took the view that, within the framework decisions, a detailed operational model which satisfied these considerations could and would be developed; and, by means of the gateway process, the new model would not be implemented until it was safe to do so. A decision-maker making effectively policy decisions is not required to resolve all matters prior to making a decision as to appropriate service model, which can properly be left to implementation, if satisfied that the model can and will operationally be developed to satisfy relevant considerations. The LHB and the Minister were entitled to find, as they did, that the model for emergency care they each separately proposed was one which would be clinically safe, with adequate staff to operate it and that transport solutions would be found in conjunction with WAST – and that the new model would only be implemented as and when these matters had been satisfied. Similarly for maternity and neonatal services at Withybush.
110. In respect of the LHB decision on emergency services at PPH, this ground falls some way short of being arguable.

Ground 1C: Failure to give consultees sufficient time and information

111. As I have indicated, to be fair and effective (and thus lawful), a consultation process must give interested parties a proper opportunity to respond. Mr Bowen submitted that the consultation process here – in both the listening and engagement phase, and the later formal consultation – was deficient because it failed to give adequate time or information.
112. In respect of time, without formally abandoning the point, Mr Bowen made no submissions. He was right to be diffident. The listening and engagement exercise lasted about four months. The period of consultation in the formal stage was 12 weeks. The periods of consultation were longer than recommended by the Welsh Government – in the case of the formal consultation, twice as long (see paragraph 32 above) – and extensions were given to allow more time to respond where it appeared interested parties in particular areas might benefit from more time. There is no indication as to what other representations might have been made, and by whom, if more time had been available. It is not arguable that the consultation periods were inadequate.
113. With regard to information, the focus of Mr Bowen's argument – referred to as "crucial" – was the failure of the LHB to inform consultees of their preferred option. I have already dealt with that issue above, under Ground 1A (see paragraphs 87-102). Mr Bowen submitted, further, that there was confusion as to the level of doctor participation that would be involved, notably that Option B would not involve any doctor presence on site. The consultation documents had to strike a balance between providing sufficient information to enable an informed response and providing so much as to obfuscate the real issues; but, even so, it seems to me that the proposed level of doctor participation was entirely clear from those documents. It was the very issue taken up by the CHC, and it is clear from the campaign documents of SOSPPAN (with which the First Claimant is involved) that the proposal was widely understood as being one in which the unit was to be "staffed entirely by nurses".
114. Finally, Mr Bowen submitted that, generally, insufficient information and data were made available to consultees; but that which it is alleged ought to have been provided has not been identified, nor did Mr Bowen explain why, in the absence of such information etc, consultees could not properly respond. As I have said, I do not accept the proposition, insofar as it was maintained, that it was unclear that the LHB proposal was nurse-only on-site. Mr Wright explains the information etc that was made available, and the obvious interest in it (16 April 2014 Statement, paragraphs 101-103). There is nothing to suggest that the consultation process was in any way undermined by a lack of information.
115. There is nothing in this ground.

Ground 2: Legitimate Expectation: Independent Chair of the Implementation Board

116. Where a public body makes a commitment that it will conduct a process in a particular way that induces a legitimate expectation that the process will be conducted in that way then, unless there is an overriding reason why it should be allowed to resile from that promise, the court will require that promise to be kept. To do otherwise would allow the public body to abuse its public powers.
117. The evidential foundations for this ground, too, are shallow. Mr Bowen relies upon two documents. First, he relies on the passage from the 2011 Discussion Document, quoted at paragraph 40 above, namely:

"Once we have completed the consultation process we want to assure you that we will have a robust process of implementing any changes. An Implementation Board will be formed with a chair person independent of the Health Board. This board will be responsible for overseeing and providing scrutiny on the change process." (emphasis in the original).

118. Second, he relies on the passage from the consultation document, Your Future, Your Health, quoted at paragraph 45 above, namely:

"Once we have completed the consultation process we want to assure you that we will have a robust process of implementing any changes. An implementation board will be formed with a chairperson independent of the Health Board. The board will be responsible for overseeing and providing scrutiny on the change process… Before any change is made the board will need to be sure that the infrastructure is in place to support the change and the alternative service is in place." (emphasis in the original").

119. If I might respectfully borrow a phrase from Munby J (as he then was) in R (Charlton Thomson) v Secretary of State for Education and Skills [2005] EWHC 1378 (Admin) at [152], this challenge falls at the very first hurdle – and for the same reason as the challenge in that case fell at that same stage.
120. The first requirement of a legitimate expectation is to show, by evidence, that the public body committed itself to a particular course (R (Bibi) v London Borough of Newham [2001] EWCA Civ 607 at [19]-[21] per Schiemann LJ). The mere giving of information about an intended process does not, in itself, amount to a commitment that the public body will not change it mind and choose a different course. Although each case will of course be fact-specific, when consulting on matters of options as a matter of principle or policy, expressions as to how an option (if pursued) will be implemented will usually be by way of information and not commitment.
121. Here, my firm view is that the giving of information about the make up of the Implementation Board did not create a legitimate expectation that the LHB would not change the manner of implementation including changing the constitution of the board either (i) at all or (ii) without further consultation. The two extracts upon which Mr Bowen relied were no more than descriptive of how it was intended the process would happen, not a promise that it would happen in that way. Mr Wright explains why it was decided in the event not to have a chairperson independent of the LHB, but to have as chair an independent member of the LHB Board (16 April 2014 Statement, paragraph 48-51). The LHB was entitled to change course in that way.
122. In any event, the First Claimant is unable to demonstrate that any detriment has been suffered by him or others by having as chair of the Implementation Board an independent member of the LHB Board; nor that it would be an abuse of power to allow the LHB to resile from any promise it made.
123. For those reasons, I consider that this ground too is unarguable.

Grounds 3 and 6: Public Sector Equality Duty

124. Grounds 3 and 6 can be conveniently dealt with together.
125. Section 149 of the Equality Act 2010 provides that a public authority must, in the exercise of its functions, have "due regard" to the need to (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
126. The duty requires a "conscious directing of the mind to the obligations" (R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) per Davis J (as he then was)), "due regard" being the appropriate regard in all the circumstances. In R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) at [78], Elias LJ explained:

"The concept of 'due regard' requires the court to ensure there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision-maker. In short, the decision-maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors."

127. In this case, Mr Bowen focused on transportation of patients. I have already considered that in the context of Ground 1B (see paragraphs 107 and following above). He accepted that the Directors' Report identified the issue properly in the context of the public sector equality duty, but complained that it did not assess the adverse impact on them with any precision, and left it to the implementation stage for discussions to take place with WAST. He introduced emotive evidence of individuals who told stories of recent delays in ambulances in West Wales, before the implementation of the service changes proposed. Each of the service changes will make matters worse for patients, submitted Mr Bowen, and this matter cannot be left over to implementation.
128. Mr Bowen therefore made no general complaint about the LHB's approach to its section 149 obligations. He was right not to do so. Miss Carss-Frisk submitted (see paragraphs 111 and following of her skeleton argument) – and I accept – that the evidence shows the LHB rigorously considered its duty at all stages. The criticism is a narrow one – and, in my judgment, unfounded.
129. As the recital of the history above shows, transportation of patients was throughout a matter that it was always appreciated needed resolution. It was specifically identified in paragraph 8.5 of the Directors' Report. Resolution can only be made with the assistance of WAST. The Directors' Report referred to a commitment to "providing tangible solutions to improving transport", as well as to "mitigating the potential negative impact by providing care in the community and in primary care whenever possible" (again, paragraph 8.5). As I understand it, discussions are proceeding to improve ambulance services in West Wales – there was evidence of a £1m investment in the same, made during the course of the hearing before me – and none of the service changes will go forward without the LHB being satisfied that appropriate and safe transportation arrangements are in place.
130. In those circumstances, Miss Carss-Frisk relied on the commendable judgment of His Honour Judge Keyser QC sitting as a judge of this court in R (Copson) v Dorset Healthcare University NHS Foundation Trust [2013] EWHC 732 (Admin), a case not dissimilar from this on its facts. That case too concerned healthcare services, and in that case too service user transport arrangements provided the basis for a section 149 challenge. A review of community transportation arrangements was taking place, which would focus on mental health users (of whom the claimant was one) and their carers accessing urgent care services. NHS Dorset was supporting that infrastructure development.
131. Having stated that the burden is on a claimant to show a breach of section 149, and that it was completely obvious in that case (as in this) that the defendant had had the section 149 duty well in mind, he said this:

"… [T]he specific criticism of the analysis relating to transport… has substance only inasmuch as it points out that transport was a problem to which no detailed solution had been formulated. However, as I have already mentioned, the general solution had been identified and it was appreciated both that the details had to be 'firmed up' and that the needs of each specific case would be the subject of an assessment in the normal way. The defendant clearly considered the transport issue. It was not bound to take the view that supposed transport difficulties were a determinative objection to its proposals."

132. That is the answer too in the cases before me. The LHB was entitled to conclude that it would be possible to develop the model to ensure that there was no disproportionate adverse effect on any protected group. The LHB clearly considered the transport issue with particular care, and are engaged with WAST in ensuring that appropriate arrangements for patient transportation are in place before the service changes are implemented.
133. That deals with the decision of the LHB. So far as the Minister is concerned, the Panel of course had all of the material before them that the LHB had when making their decision. Furthermore, the CHC did not refer any proposal on the basis of concerns about the section 149 duty, and indeed expressly said to the Minister that they did not suggest there was any breach of that duty. In their referral letter of 19 April 2013, they said (at page 28):

"In addition to assessing health needs, the impacts of proposed changes on those protected specifically by the Equality Act 2010 should be considered. The CHC accepts that the LHB has sought guidance from both the NHS Centre for Equality and Human Rights and the Consultation Institute on this topic. The CHC also accepts that impacts have been explored and that appraisal of such impacts will continue throughout the implementation phases. As such we make no accusations that the LHB has fallen short of any statutory duties relating to the Act "

The Panel, of course, specifically took transportation into account, and made a proviso in its recommendations with regard to that in the context of neonatal facilities etc at Withybush (see paragraph 85 above). In all the circumstances, it is not arguable that the Minister was in breach of his duty under section 149.

134. For those reasons, in my judgment, Grounds 3 and 6 are unarguable.

Flatley 2 and Donohoe: Grounds of Challenge

Ground 4: Misdirection

135. I now turn to the grounds of challenge relied upon in relation to the Minister's decisions.
136. Mr Bowen's primary ground is that the Minister fundamentally misunderstood his obligations and powers, and thus misdirected himself when he came to make his determination on the CHC referrals. In particular, the CHC referred to him concerns they had in respect of the LHB consultation, but he failed (i) to make a determination on that issue, (ii) to take those concerns into account and (iii) to exercise his discretion as to whether to take those concerns into account. He submitted that those failures were in breach of various parts the statutory scheme, and common law, as follows:

i) regulation 27(7) of the 2010 Regulations; and/or

ii) regulation 27(9) of the 2010 Regulations; and/or

iii) section 183 of the 2006 Act; and/or

iv) sections 1 and 2 of the 2006 Act; and/or

v) the common law duty of enquiry as set out in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014.

137. After dealing briefly with regulation 27(7) (paragraphs 138-9 below), I will consider Mr Bowen's main submissions which were based on regulation 27(9) (paragraphs 140-7) before concluding with his remaining contentions (paragraph 148).
138. Mr Bowen did not press his submissions in respect of regulation 27(7) in his oral submission, and in my view he was right not to do so. The original ground was that, where "consultation" is referred to in regulation 27(7)(a), (b) and (c) (quoted at paragraph 29 above) it is a reference to any consultation including public consultation. Therefore, regulation 27(7) entitles the CHC to report any inadequacy of consultation with the public to the Minister, a referral to which the Minister must respond.
139. However, it is clear that regulation 27(7) is concerned solely with the adequacy of consultation with the CHC. Regulation 27(1) and (3) impose a duty on the LHB to consult with the CHC – the duty to consult with the public arising from section 183 of the 2006 Act – and regulation 27(7)(a), (b) and (c) each refer to the CHC being satisfied with "consultation on any proposal referred to in paragraph 27(1), (2) and (3)… ". Regulation 27(7)(c) refers to "the frequency with which a Council [i.e. CHC] is consulted". Furthermore, if the Minister is satisfied with the CHC's concerns, he may "… require the [LHB]… to carry out such consultation, or further consultation, with a Council [i.e. CHC] as [he] considers appropriate." That remedy is only sensibly consistent with an obligation to consider the adequacy of consultation with the CHC. In my view, it is clear beyond argument that regulation 27(7) is concerned solely with consultation with the CHC; and I need not consider it further in the context of this claim.
140. In respect of regulation 27(9), Mr Bowen submitted that, properly construed, it imposed an obligation on the Minister to make a determination on a referral expressing concerns about process, including consultation with the public; or, at least, it gives him a discretion to take such concerns into account and the Minister in this case failed to exercise that discretion.
141. He contended that regulation 27(9) gives the CHC a very wide discretion to refer matters to the Minister, i.e. "In any case where [it] considers that a proposal submitted under paragraphs (1) and (3) by a relevant Local Health Board would not be in the interests of the health service in its district…" (emphasis added). That is wide enough to include cases where the CHC has concerns about the consultation process. "Proposal" is wide enough to include both the substantive service change proposed, and the process that led to it being proposed. Thus, if referred to him, the Minister must make a final decision on both the substantive service proposed and the process that led to it.
142. Even if the Minister is not bound to make such a determination, Mr Bowen submitted that regulation 27(9) gives him a discretion to take into account such concerns as to the process adopted by the LHB. He accepted that it was open to the Minister to take such concerns into account and decide that any defect in process would not alter his decision. However, in this case, he said, the Minister did not do so. In his letter of 31 May 2013 (quoted at paragraph 78 above), he made it clear he was not going to take the CHC's concerns about consultation into account, saying:

"Although the [CHC's] report on the [LHB's] consultation with the wider public is outside the remit of the Regulations and therefore not something on which I shall make a determination."

143. Mr Buley for the Minister submitted that it was Mr Bowen, not the Minister, who had misconstrued regulation 27(9). With respect to Mr Bowen, I agree.
144. The correct starting point is the function of the Minister under regulation 27(9). On a referral, he "may make a final decision on the proposal and require the relevant Local Health Board to take such action, or desist from taking such action, as [he] may direct." I disagree with the proposition that "proposal" here means, not only the outcome (i.e. the service change proposed), but also the process by which such an option was chosen. That is not only not the plain and ordinary meaning of the word – which is simply "that which is proposed" – but regulation 27(7) refers persistently to "consultation on any proposal" which is only sensible if "proposal" does not in itself include consultation or other process. As a tenet of construction, a word used within a single provision is usually intended to bear the same meaning throughout. Regulation 27(9) requires the Minister to make a decision on the outcome, not the process. Therefore, the Minister does not have an obligation under regulation 27(9) to make a determination on a referral by the CHC that the process by which a proposal was chosen was defective.
145. Of course, process may affect the Minister's view of the outcome: for example, he may be concerned that defects in consultation may have led to a proposal which is, or may be, less than optimal or otherwise inappropriate. As Mr Buley readily accepts, in considering his final decision on the proposal, regulation 27(9) does not prohibit the Minister in taking into account the LHB process that led to it. He has a discretion to do so. However, it is a matter for the Minister as to what weight, if any, he gives to any concerns expressed as to process, subject of course to the procedure overall being fair. As Laws LJ said in R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55 at [35]:

"In my judgment [CREEDNZ Inc v Governor General [1981] 1 NZLR 172] (via the decision in In re Findlay [1985] AC 318) does not only support the proposition that where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such."

It seems to me that that is the more relevant where, as here, the Minister appoints an expert panel to advise him; that panel makes its own enquiries, before making recommendations to the Minister; and the Minister follows that Panel's recommendation.

146. In this case, Mr Bowen particularly relies upon this passage from the Minister's letter of 31 May 2013 (quoted at paragraph 78 above):

"… [T]he [CHC's] report on the [LHB's] consultation with the wider public is outside the remit of the Regulations and therefore not something on which I shall make a determination." "

The Minister said earlier in the letter that he proposed making a determination "on the proposals", i.e. the service changes proposed by the LHB which the CHC said that it could not support (emergency care at PPH, and neonatal services at Withybush). In the passage just quoted, he did not say that he could not or was not going to take the concerns about consultation into account when making those determinations. He simply made clear that he was not going to make a discrete determination in respect of the process adopted by the LHB. He was right to do so: he had no power under regulation 27 of the 2010 Regulations to make such a determination. He indicated that he would in due course call for a review of process, outside his powers under the 2010 Regulations, under his general powers.

147. The Minister's approach was thus in accordance with his obligations and powers under regulation 27(9).
148. I can deal with Mr Bowen's other submissions under this head shortly. He submitted that, if regulation 27(9) of the 2010 Regulations did not give the Minister power, when making a final decision on the substantive proposals, at least to consider the consultation concerns which had been brought to his notice, then such an obligation arose from the more general obligations to consult and the Minister's general powers, or from Tameside. However, as I have described, regulation 27(9) did give the Minister a discretion to consider those concerns. Contrary to Mr Bowen's suggestion, the Minister does not deny that he had that power. These other bases for it add nothing to the claim.
149. For those reasons, this ground fails.

Ground 5: The Illegality in the LHB Consultation Process

150. This ground is dependent upon my finding that the LHB consultation process was unlawful. Mr Bowen submitted that the Minister could not "hermetically seal" his decision from that illegality. However, I have found to that the LHB consultation process was lawful. This ground consequently also fails.

Conclusion

151. Consequently, despite the best and able efforts of Mr Bowen, I do not find any of the Claimants' applications made good. For the avoidance of doubt, whilst I appreciate that the Claimants' underlying concern and complaint is about the substance of the relevant decisions (a question with which I am not concerned), given that the question of whether a procedure adopted is fair is ultimately a question for the court (see paragraph 88(v) above), I should say that, on the basis of the submissions and evidence before me, I am wholly unconvinced that any aspect of the procedure adopted by the LHB or the Minister was unfair, or unlawful.
152. For the reasons I have given, these claims fail. Formally, I make the following order:

i) Flatley 1: Permission to proceed is refused.

ii) Flatley 2: The substantive application for judicial review is dismissed. The application to set aside the refusal of permission to proceed with the public sector equality duty ground is refused.

iii) Donohoe: In respect of Ground 4 upon which permission has been granted, I dismiss the application for judicial review. In respect of all other grounds, I refuse permission to proceed.