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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thomas, R (On the Application Of) v Hywel Dda University Health Board [2014] EWHC 4044 (Admin) (04 December 2014)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4044.html
Cite as: [2014] EWHC 4044 (Admin)
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
2 Park Street Cardiff CF10 1ET |
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B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF COLWYN MEURIG THOMAS |
Claimant |
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| - and - |
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HYWEL DDA UNIVERSITY HEALTH BOARD |
Defendant |
____________________
Parishil Patel (instructed by Blake Morgan LLP) for the Defendant
Hearing date: 17 November 2014
Further written submissions: 21-26 November 2014
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Crown Copyright ©
- The Claimant, who lives in Cardigan, challenges the decision of the Defendant ("the UHB") on 30 January 2014 to cease provision of in-patient beds at Cardigan Hospital ("the Hospital"), on the single ground that the UHB, in breach of its statutory and common law duties, failed to consult on the proposed change. The challenge is brought with the permission of Jeremy Baker J, granted at an oral hearing on 31 July 2014 following refusal of permission on the papers.
- Before me, Nicholas Bowen QC and David Lemer appeared for the Claimant, and Parishil Patel for the UHB. I thank them at the outset for their helpful contributions.
- Under section 1 of the National Health Service (Wales) Act 2006 ("the 2006 Act"), the Welsh Ministers are responsible for ensuring the provision of health services in Wales: in practice, that responsibility is borne by the Minister for Health and Social Services ("the Minister"). Section 11 establishes local health boards ("LHBs"), each of which, subject to any direction or guidance from the Minister, exercises various functions relating to the provision of NHS services in its area (section 12(1)-(3)). The UHB is the LHB for Carmarthenshire, Pembrokeshire and Ceredigion.
- Part 12 of the 2006 Act makes provision for "Public involvement and scrutiny". Section 183(1) (which falls within Part 12 Chapter 2) provides:
- In addition to that requirement to consult generally, an LHB has a particular obligation to consult with the relevant community health council ("CHC"). CHCs 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, which falls within Part 12 Chapter 1 of that Act. The CHC for the UHB's area is the Hywel Dda CHC.
- By section 182(4), schedule 10 to the 2006 Act makes provision for CHCs. Paragraph 1 of schedule 10 provides that:
- Regulation 26(1) provides:
- As well as that duty of on-going scrutiny, regulation 27 gives a CHC the right to be consulted by its equivalent LHB, and of course a correlative obligation on a board to consult its council. So far as relevant to this claim, regulation 27 provides:
- 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 Guidance"), was issued by the Minister in March 2011. It stresses that the Welsh Government are intent on a programme of change for health services in Wales, 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).
- In implementing that programme, the Minister's Guidance emphasises "the need for a new approach to change based on continuous engagement, rather than the perfunctory involvement around specific proposals… [T]he Welsh Assembly Government… expect organisations in the reconfigured NHS to pay considerably more attention to continuous engagement to ensure that all organisations are responsive to the needs and views of citizens" (paragraph 2). It goes on to say:
- Section 4 focuses on "Continuous Engagement":
- These themes are picked up in Section 5, "Substantial change":
- the Stakeholders Reference Group
- the Professional Forum
- the Partnership Forum
- the [CHC]
- the Local Service Board
- staff and their representative bodies
- other key partners as appropriate
- …
- has there been any previous consultation carried out on the same or a previous related or similar issue, e.g. for local authority services?
- who should be consulted, on what and how?
- …
- what resources are needed and available?
- Paragraph 31 refers to an LHB and its equivalent CHC developing a local protocol to assist in identifying when a proposed service change requires consultation. No protocol was ever agreed between the UHB and the Hywel Dda CHC.
- The absence of the protocol was raised by Mr Bowen as a discrete ground of challenge for the first time at the hearing before me. In subsequent written submissions, Mr Patel says that a draft protocol setting out proposals for the mechanism by which changes that required consultation could be identified was sent to the Hywel Dda CHC in May 2011, but no response was ever received. That draft protocol would require any proposed service change to be notified by the UHB to the Hywel Dda CHC, and, through a joint CHC Localities/Planning Committee and within ten days, the Chief Executive of the UHB and the CHC were to come to a conclusion on the following questions:
- The draft protocol does not say how disagreements are to be resolved; but, of course, it is the UHB which has the primary decision-making function in relation to consultation on any change. If the Hywel Dda CHC does not agree with the UHB's final view, then it may refer the matter to the Minister who can direct consultation or further consultation.
- In the absence of an agreed protocol, the submissions say that whether consultation is required is a matter considered on its merits by the UHB. A recent review of the Minister's Guidance has made various recommendations, currently being considered by the Welsh Ministers; and so, the UHB considers, it is not an appropriate time to pursue the agreement of such a protocol.
- In November 2011, the Welsh Government 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 document proposed "One system for health", i.e. "new simplified, integrated services", involving "a spectrum of hospitals, fully integrated with strong primary and community services, available to everyone, whether they live in cities, towns or the countryside" (pages 7-9). "Fewer people", it said, "will need to go into hospital" (page 9). Of Ceredigion, it said:
- So far as Cardigan is concerned, this all reflected two earlier documents. First, in December 2009 the Welsh Government published a paper dealing with the challenges of delivering health services in rural Wales, "Rural Health Plan – Improving Integrated Service Delivery across Wales", which proposed a greater focus of specialised health services together with greater accessibility to less specialised services within communities. The report said (at paragraphs 4.2.1 and 4.2.2):
- Second, the LHB published a document in March 2010, "Strategic Outline Case for Integrated Health and Social Care in Cardigan", which concluded that the current system of care in the Cardigan area was fragmented and disjointed, with a pressing need for service integration (pages 12-13). There were inequalities in access to services across the area, access to hospital-based care being restricted to those patients registered with the four GP practices on the Cardigan Hospital Bed Fund Scheme which, it estimated, comprised about 24,500 patients of a catchment population of 39,200 (page 13).
- Cardigan Hospital is housed in a mansion built on the site of a former Benedictine priory, the fabric of which still forms part of the building. It was a dwelling house from the dissolution of the monasteries until the First World War. It has been a hospital since 1922. It has had in-patient beds since just after the Second World War. In recent years, they have been used primarily for palliative care, and rehabilitation so that patients who have received specialist treatment in other hospitals can receive care nearer home. Until March 2012, there were 21 beds.
- The 2010 document said of the Hospital:
- The report proposed "a new integrated health and social care facility in Cardigan ['the New Facility'] which will result in the closure of the existing Community Hospital and GP Medical Centre and the relocation of the Social Services Teams" (page (i)). A site was identified. The New Facility was intended to include "a full range of dedicated rehabilitation services", including "21 [or, alternatively, 25] beds to be used for rehabilitation, palliative/end of life care, respite care". The estimated capital cost was about £29m.
- Although the aspirational completion date for the project of January 2014 proved very much optimistic, as I understand it the 2010 document formed the basis of the working Outline Business Case submitted to the Welsh Government in 2010, and the final Outline Business Case submitted in July 2014. The capital funds have been earmarked, the site has been purchased and the strategy for Cardigan health services is still built on this model. A Project Board charged with delivering the New Facility was established in 2010, chaired by Susan Lewis, the Defendant's Pembrokeshire County Director and Commissioner. A Stakeholder Board was also formed. Both have met, and continue to meet, regularly.
- Although concern has been expressed about the manner in which the UHB has proceeded with the project and the time line – this project was originally conceived in 2002 – no complaint is made in this claim about the level of engagement with the Hywel Dda CHC, the public and third sector voluntary organisations such as the well-established Cardigan Hospital and Community League of Friends ("the League of Friends") in respect of the New Facility. The evidence is that these proposals have been discussed with the other stakeholders since November 2009, and those discussions are on-going (see Susan Lewis Statement dated 8 September 2014, paragraphs 6 and following).
- In March 2012, the nine-bed Derwen Ward (the downstairs in-patient ward) was closed, because of concerns about staff (including the high levels of long term sickness) and the environment. The number of beds was thus reduced to twelve; but, to offset that loss, nine joint care beds were commissioned in local authority residential homes across the county, those beds being specifically for patients who may require additional support although not necessarily a hospital bed. Later, the number of beds in operation was reduced to eight because of similar concerns continuing. No challenge was, or is, made to those decisions.
- In September 2012, following a period of "listening and engagement" with clinicians and patients and other stakeholders, the UHB published a major consultation document on the future of health services in the area, "Your Health, Your Future". That said that it was proposed to provide more community support to enable more people to be treated and cared for at home, with a consequent reduction in hospital beds; and to provide "community beds that support our assessment of patients and provide care closer to home". The document proceeded on the basis that the New Facility would be built in Cardigan. At that time, it was still proposed that it would have an in-patient facility; although it was still an option for the New Facility to have no beds itself, with associated beds being provided elsewhere.
- Discussions continued throughout 2013. The New Facility proposal continued to provide for beds; but other options (particularly the extent to which beds could be provided in the community) were still being discussed. Thus, at the 25 November 2013 Stakeholder Board meeting, the UHB gave assurances that it "is committed to providing beds and informed the group that prior to the development of a full outline business case for Welsh Government consideration, an option appraisal process will take place to determine the best use of beds, how many and where these should be allocated for the benefit of the whole community" (UHB Press Release, 25 November 2013). The UHB said:
- In the meantime, pending the New Facility, there were serious concerns about the in-patient facility (i.e. the remaining beds) at Cardigan Hospital. From February to September 2013, the Senior Sister at the hospital (Jan Walker) completed a series of six risk assessments in standard NHS form, i.e. SBAR (Situation, Background, Assessment, Recommendation) reports. The thrust of these was that there were not enough available nurses to ensure that there were two nurses on duty per night shift, at least in part because of long term staff sickness. The 20 June report recorded:
- The 1 September 2013 SBAR report again reported that there were insufficient registered nurses to ensure that there were two on duty for each shift; but Sister Walker suggested that there was evidence emerging that one registered nurse on duty at night was sufficient: the NHS Wales "All Wales Principles" indicate that acute wards require a ration of only one registered nurse for every 11 patients. The report therefore suggested that only one registered nurse be rostered for each night shift from 23 September 2013.
- That report prompted a considerable amount of activity, as described in the statements of Ms Lewis dated 8 September 2014, the LHB Ceredigion County Director (Gillian Davies) dated 16 September 2014, and the LHB Community and Primary Care Nurse Manager (Tracey Evans) dated 29 August 2014.
- The day after the SBAR report (2 September 2013), eleven out of fourteen members of the qualified nursing staff at the Hospital sent a letter to Sister Walker copied to the Community and Primary Care General Manager (Jina Hawkes) and Ms Evans, saying that the staff considered the high dependence and nursing demand levels of patients on the ward meant that the national guideline of patient to staff levels was often exceeded, and one nurse at night would be unable to deliver proper care to these patients. As a result of these inadequate staffing levels, the staff felt under undue pressure and stress; and considered there could be legal implications for them if they undertook shifts knowing there was inadequate cover. They requested that the concerns be addressed immediately, as they considered patient care was being put "at substantial risk".
- In response, the implementation of the new roster was immediately postponed, and Sister Walker's earlier risk assessment was reviewed.
- Sister Walker contacted the Director of Nursing, who said that the national guidance referred to only surgical and medical wards, and the hospital's position with regard to its in-patients had to be based on professional judgment, taking account of the risks posed to those patients by the regime proposed. The Head of Nursing for Ceredigion County (Andrea Higgins) was asked to provide advice and guidance – Ms Higgins in fact became the UHB's Head of Nursing from September 2013 – and the concerns were also relayed to a number of other healthcare professionals, including the Hospital's Director of Clinical Care (Pembrokeshire) and Associate Medical Director (Safety and Quality), Dr Iain Robertson-Steel. Dr Robertson-Steel responded on 23 October 2013, saying that he had concerns about the ratio of nurses to patients at the hospital, and particularly elderly patients, noting that the Commissioner for Old People wanted the ratio increased to 1:4 for this group of patients. He said: "I think we need to consider whether it is in the best interest of this group of patients to be housed in Cardigan Hospital, particularly when the overall cost is considered".
- A Consultation Briefing Document (based on the Royal College of Nursing document, "Guidance on Safe Nursing Staffing Levels in the UK" (2010)) was prepared by Ms Hawkes and Ms Evans, for consideration by staff and the hospital management. That performed a historical analysis of the Hospital in-patients, which suggested that 41% did not need a hospital bed and could have been maintained in their own homes. Whilst further work was done on the care model, it was proposed that, at night, a single registered nurse was supported by the nurse on night duty with the Community Acute Response Team based at the Hospital (when not on call) and two healthcare support workers. The need to release staff for further training was also recognised.
- Meetings with staff were also arranged under the "All Wales Raising Concerns (Whistleblowing) Policy". At such a meeting on 16 October 2013, the twelve staff who attended reiterated the concerns they had expressed in their letter of 2 September. It is not suggested that the UHB's note of the meeting does not accurately set out what was discussed. Ms Hawkes opened the meeting by saying that there were no plans to close the Hospital (by which, in context, she clearly meant the in-patient facility at the hospital). Much work (she said) had been done to address the concerns expressed in the staff letter; and a piece of work was also being discussed for a new model of care.
- The staff did not want the in-patient facility at the hospital to close. However, they unanimously agreed that the proposed roster with only one registered member of staff on the night shift was unsafe and compromised patient safety. Consequently:
- An assurance was given by the UHB to the staff that measures were in place to ensure that there were two registered nurses on each shift, including night shifts, notably by engaging the Community Acute Response Team nurse.
- As a result of this meeting, a formal investigation under the whistleblowing policy was directed. However, before this got substantively under way, a review of patients' medical records and care plans was performed, which highlighted significant deficiencies in accuracy and quality, including non-compliance with record keeping and poor hand-over practice. There were concerns about skill levels and competency. A programme was developed to address this. However, the implementation of the programme was not a success, because of the difficulties in releasing staff to attend and a lack of enthusiasm on the part of staff. Furthermore, on 15 November 2013, there was another "near miss" incident reported. An investigation again suggested wider concerns about quality and safety of nursing care.
- As a result of these continuing and mounting concerns, on 19 November 2013, a decision was taken by Ms Davies, Ms Evans, Ms Hawkes and Ms Higgins to suspend new admissions to the Hospital until the immediate concerns about patients and staff had been addressed. As Ms Davies explains (in her statement at paragraph 38):
- On 19 November, there were eight patients in the hospital. With no further admissions, the number rapidly reduced to four. As envisaged, the patients were duly reviewed; and an exercise was also performed to identify requirements for individual staff members. Training programmes were introduced. However, some staff applied for other jobs, or chose to work in other specialisations or work towards retirement.
- In addition to the short-term concerns about patient safety and staff welfare, Ms Davies said (in her statement, paragraph 46) that a number of longer-term considerations became apparent. Sickness levels were high amongst qualified nurses, staff morale was low and there were continuing concerns about competence and governance levels. Although recruitment had not in the past been an issue, there was concern that nurses in future would opt to work in ambulatory care and community care services. It was difficult, if not impossible, to employ agency nurses in the area. In addition, the environment at the hospital was poor, and the wards did not offer modern facilities. These concerns were exacerbated by the fact that most of the patients were elderly, and therefore at particular risk of (e.g.) falls and hospital infections.
- Ms Davies said (at paragraph 48 of her statement):
- The decision to close the in-patient ward was to be made initially and provisionally by the Corporate Directors' Group ("CDG"), to be considered and (if appropriate) endorsed by the UHB Board itself in due course. The CDG were due to meet on 4 December 2014. Prior to that meeting, the possibility closing the in-patient facility at the Hospital – as opposed to suspending new admissions – had not been suggested to the CHC or other stakeholders.
- Ms Davies prepared a report for the meeting, which set out the background including the work that was being done on a new service model in the light of the proposed New Facility "within the next few years". The assessment said that the staff had not considered acceptable the night proposal for a single registered nurse supported by the Community Acute Response Team nurse; and there were considerable challenges in maintaining consistent staff levels whilst developing an appropriate level of skills for future services. Staff transferring to the new service model (it said) would require additional skills and experience ahead of the New Facility, which would require support and exposure to new skills and integrated working practice. In terms of the future, it said:
- The "Recommendation" therefore put forward two alternatives:
- Therefore, it is clear from this report that it was considered that the issues arising in the in-patient ward at the Hospital needed to be addressed urgently, but, because the Hospital would likely close to in-patients in favour of whatever facilities would be provided by the New Facility when that was operational (a subject still under discussion), the question was how the issues should be addressed on a time-limited, transitional basis until that New Facility became available. There were two options. First, the in-patient ward could be kept functioning by diverting resources from community care to the hospital; although that would be contrary to the strategic aim of favouring community care over hospital care, and the report identified a number of practical difficulties in pursuing that option. The second option was to close the in-patient facility, whilst identifying beds that could be used elsewhere (e.g. at other hospitals such as Cylch Caron Hospital, Tregaron; or in residential homes) plus improving community care so that less patients would require an NHS bed. The report clearly and firmly favoured the latter option.
- So did the CDG. The minutes of their 4 December 2013 meeting record:
- Although in context the resolution was clear, Ms Davies confirms (in paragraph 49 of her statement):
- That CDG decision was, of course, provisional in the sense that it was required to be endorsed by the UHB Board.
- Ms Davies says (her statement, paragraph 52) that a communication plan was established to manage the announcement of the closure and the information of the alternative facilities that would be available; and, indeed, she produces the plan, which included dates for briefing the local authority, the CHC, the Welsh Government, members of the Senedd, staff, GPs and the League of Friends. To the extent that Mr Bowen suggested that there was no plan promptly to notify the CHC and others of the closure of the beds from February 2014, I dismiss that suggestion: I accept Ms Davies' evidence that a communication plan involving prompt notification was prepared. However, that plan was scuppered by a leak of the closure to the press on 6 December 2013, which resulted in the abandonment of the prepared plan in favour of accelerated communication to key stakeholders, in a less coherent manner, on 6 and 7 December.
- Once it was known that the in-patient facility at the hospital was to close, there was a considerable adverse reaction.
- On 11 December, the Chairman of Hywel Dda CHC (Anthony Wales) wrote to the Chairman of the UHB (Christopher Martin), seeking further information about (amongst other things) timing and phasing, and where the alternative beds would be. The letter complained of the perceived lack of communication with, not only the CHC, but also other stakeholders such as doctors and the voluntary sector. Mr Wales said:
- Mr Martin responded on 2 January 2014. His letter focused on the Integrated Model of Care; acknowledged that "the local community need assurance that appropriate beds will be available when admission is required", and confirmed arrangements for that were in hand; and, said Mr Martin, the UHB "look[ed] forward to the opportunity to discuss, in more detail with [the CHC] and wider representation".
- Mr Wales was not content. He wrote again on 23 January, expressing concern about the longer term and seeking comfort that this was not "a short term knee jerk reaction to current staffing issues or else merely a longer term funding issue and a desire to save LHB monies". He said:
- The CHC were not the only ones to raise concerns. The Chairman of the League of Friends, Eirwyn Harries, wrote to Mr Martin on 12 December 2103 expressing his committee's "serious and grave concerns". The League of Friends (who, over the years, have raised substantial amounts of money in support of the Hospital) were, he said, "appalled, disgusted and disappointed" to have read about the imminent closure in the press, and the continuing delays in respect of the New Facility. The same day, following the closure of the Hospital beds (and, expressly, the failure to consult on the changes), the County Council unanimously passed a vote of no confidence in the management of the UHB to deliver health services in Ceredigion. Cardigan Town Council arranged for a petition against the closure which was, quickly, signed by 11,000 individuals. Opposition to the closure was also voiced by the local elected representatives to the Westminster Parliament and the Senedd, and local GPs.
- On 30 January 2014, the UHB Board met to discuss the changes. To assist them they had a report prepared by its Director of Operations (Paul Hawkins) and Director of Corporate Services (Chris Wright) ("the Directors' Report"). In particular, the Board were asked to do two things:
- In relation to the endorsement of the substantive decision, the report emphasised:
- With regard to consultation, the report set out the policy context, and made clear that "[the Hywel Dda CHC] feel that a formal consultation is necessary as a result of the move of in-patient beds into alternative settings being permanent and have requested the [UHB] undertake this immediately". It continued:
- The minutes of the 30 January 2014 Board Meeting, records that Mr Wright presented the Directors' Report, and spoke to it. He said that the Board was required to ask itself "whether the closure of a small number of beds on a site that is clinically and environmentally unsuitable for patients, and their reprovision elsewhere, constitutes substantial or significant service change" and "whether the [UHB] would engage in any meaningful consultation given that no alternative options to those already described have been identified". The strong feelings of the people of Cardigan opposing the decision were acknowledged; and members of the Board were reassured that "because the decision to close beds was taken on safety grounds, the reprovision of beds within the community will mitigate against any adverse impacts and address the safety issues involved".
- The Board both endorsed the decision to close the in-patient facility, and approved a programme of continuous engagement on the issue of future in-patient facilities rather than formal consultation in accordance with the Hywel Dda CHC's request. It is, of course, that decision not to consult that is challenged in this action.
- Mr Bowen submitted:
- Mr Patel for the UHB submitted:
- Those submissions gave rise to the following issues, with which I shall deal in turn:
- The nature of a public authority's duty to consult (and, in particular, the relationship between that duty and public law fairness) has recently been considered in two illumining cases, namely by the Divisional Court in the proceedings concerning the remains of Richard III (R (Plantagenet Alliance Limited) v Secretary of State for Justice and Others [2014] EWHC 1662 (Admin) ("the Richard III case") at [83]-[98]), and by the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56 at [23] and following per Lord Wilson JSC and, especially, the judgment of Lord Reed JSC at [34]-[41] with which Baroness Hale DPSC and Lord Clarke JSC expressly agreed (at [44]). These cases emphasise that which was made clear by Sedley LJ in R (BAPIO Action Limited) v Secretary of State for the Home Department [2007] EWCA Civ 1139 at [43]-[47], namely that there is no general common law duty to consult persons who may be affected by a measure before it is adopted. However, there may be a statutory duty to consult; or an obligation to consult may arise because of the common law duty of fairness.
- Moseley concerned the replacement of council tax benefit with council tax reduction schemes under section 13A of the Local Government Finance Act 1992, Ms Moseley being a resident of Haringey who had been in receipt of full council tax benefit and who was concerned that the new proposed scheme might adversely affect her (particularly when compared with the default scheme that would apply if the proposed scheme were quashed).
- Schedule 1A to the 1992 Act prescribed the relevant procedure that local authorities had to follow, which included (as paragraph 3(a)) an obligation to "consult such other persons as it considers are likely to have an interest in the operation of the scheme". Lord Reed explained the relationship between that duty to consult and fairness, thus:
- Therefore, where, as in this case, there is a statutory duty to consult:
- Relying upon these propositions, Mr Patel submitted that, on its true construction, under the 2006 Act scheme, if a member of the public such as the Claimant wishes to complain about an LHB's failure to consult at all or properly, then the statutory route of complaint and challenge is through – and exclusively through – the relevant CHC. The CHC has an explicit and specific responsibility to represent the interests of the public (see paragraph 1 of schedule 10 to the 2006 Act and paragraph 14 of the Minister's Guidance, quoted at paragraphs 5 and 9 above respectively); and, if the LHB fails in its obligations to consult, then, under regulation 27(7) of the 2010 Regulations (quoted at paragraph 7 above), the CHC has power to report the matter to the Minister who may require the LHB to consult or consult further. If, following an approach by a member of the public, it wrongly fails to do so, the correct remedy is for the member of the public to seek judicial review of the CHC's decision not to refer. This claim, seeking directly to challenge the UHB's decision not to consult, is therefore misconceived.
- Although, for reasons that will become apparent in due course, this issue is not determinative in this claim, I am unpersuaded by Mr Patel's submission. I appreciate that one role of a CHC is to consider and protect the interests of the public, and the matters upon which an LHB may be required to consult with a CHC on the one hand and the wider public on the other are written in similar terms. However, the duties of an LHB to consult its CHC on the one hand, and the public more generally on the other, derive from different parts of the statutory scheme; the former from regulation 27 of the 2010 Regulations made under schedule 10 and thus section 182 of the 2006 Act (which concerns CHCs), and the latter under section 183 of that Act (which concerns public involvement and consultation). Those sections appear in different chapters of the Act. As I emphasised in R (Flatley) v Hywel Dda University Health Board [2014] EWHC 2258 (Admin) at [139], in which Mr Bowen sought to argue the contrary, regulation 27(7) of the 2010 Regulations is only concerned with the adequacy of consultation with the CHC, a proposition I there described as "clear beyond argument". It is clear from the reference in that provision to regulation 27(1) and (3) which impose a duty on the LHB to consult with the CHC; and from the fact that, 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" (emphasis added). That remedy is only sensibly consistent with an obligation to consider the adequacy of consultation with the CHC. A CHC cannot refer to the Minister a failure of the LHB to consult the public, as opposed to a failure to consult the CHC itself, a point expressly made in paragraph 57 of the Minister's Guidance.
- The consultation duties of an LHB to its CHC and to the wider public are thus discrete; and, in my view, a member of the public is entitled to seek to enforce an LHB's duty to consult the public under section 183 by way of judicial review.
- That disposes of Mr Patel's submission that this claim is misconceived. However, the Richard III case and Moseley emphasise that the statutory context is important in determining the circumstances in which statutory consultation is required and, if required, its scope. The fact that the CHC has this statutory role in respect of the public interest and this power to refer a failure by an LHB to consult it in a proposed service change is, although not determinative, a material factor when an LHB is determining whether to consult the public and the scope of any such consultation. It seems to me that an LHB is entitled to take a more robust view with regard to consultation of the wider public because the statutory scheme has this check and balance inherent in it.
- In addition to regulation 27(1) of the 2010 Regulations (which imposes a duty on an LHB to consult its CHC on the planning and development of health services in its area), regulation 27(3) requires an LHB to consult its CHC when it has under consideration "any proposal for a substantial development for the health service… or for a substantial variation in the provision of such a service", i.e. any "substantial" service change.
- There is no such express obligation in respect of its duty to consult the general public. Section 183 simply requires each board to make arrangements with a view to securing that health service users are "involved in and consulted on", amongst other things, "proposals for change in the way [health] services are provided". However, the Minister's Guidance applies to both types of consultation. At paragraph 31 (quoted in full at paragraph 13 above), it states that:
- In respect of this "key issue", as I have described, the UHB found that the proposed change was not "substantial". Mr Bowen submitted that it was wrong to do so.
- He submitted that the proper approach to the construction of "substantial service change" was that set out in R v Criminal Injuries Compensation Board ex parte Webb [1987] QB 74 at page 78 per Lawton LJ, in a different but comparable statutory context:
- The UHB had, Mr Bowen said, assessed "substantial" only or at least predominantly against the number of beds involved, rather than the consequences of the change in terms of impact on patients and thus the public. Even then, it erred in the number of beds involved, which they said was eight: prior to the suspension of admissions, the hospital had twelve beds, although only eight were in fact being used when the suspension of new admissions was imposed in November 2013 (see paragraph 26 above). Mr Bowen also relied upon evidence from a resident of Cardigan whose mother was in need of substantial care in the months until her death in September 2014. Her son considered that, had beds been available in the Hospital, she would have received 24 hour care better than she did living at home with the benefit of a care package that was not 24 hour. He also relied upon the evidence of a GP who works at the Cardigan Health Centre, Dr Astrid Cuddigan, who complains generally that she does not know the facilities or staff at the establishments to which patients who required a bed are now sent (Statement dated 25 July 2014, paragraph 9); and specific instances of patients of hers from Aberporth who was sent to a joint care bed in Aberaeron, and another terminally ill patient who was sent to Glangwili Hospital, Carmarthen, a long way away from family and friends (paragraphs 8 and 10). In all the circumstances, Mr Bowen submitted, a "reasonable and literate man" would consider the permanent closure of in-patient beds at the hospital a substantial change.
- However, in my judgment, the Board were entitled to find that the closure of the facility was, in all the circumstances, not a substantial service change. In coming to that conclusion, I have in particular taken into account the following:
- In my judgment, in all the circumstances, the UHB was entitled to find that the change they were being asked to endorse was not a substantial service change within the terms of the statutory scheme.
- As I have described, regulation 27(5) of the 2010 Regulations provides that an LHB's obligation to consult its CHC does not apply where "the [LHB] is satisfied that in the interests of the health service or because of a risk to safety or welfare of patients or staff, a decision has to be taken without allowing for consultation…". In those circumstances, the only obligation is to notify the CHC immediately of the decision taken; although paragraph 49 of the Minister's Guidance suggests that, where a decision is taken without consultation because of the risk to the health and welfare of patients and staff, "the LHB… should take urgent steps to bring the change process in line with the requirements that normally apply and put in place a comprehensive consultation process". In any event, having been notified of the proposed change. the CHC can then, of course, consider whether to seek to persuade the LHB to consult, or refer the matter to the Minister who can direct such consultation.
- Regulation 27(5) does not apply to the LHB's duty to consult with the wider public, and, as I have explained, its duty to consult the wider public derives from a different part of the scheme. Mr Bowen submitted in his skeleton argument that, under the Minister's Guidance, an LHB may have to consult with the wider public even when risk to health and safety means that it is not required to consult with its CHC.
- He did not press that argument in his oral submissions, and I do not consider it has force. As I have explained, whether a public authority has a statutory obligation to consult – and, if so, the scope of that obligation – depend upon context. If an LHB is satisfied that, because of a risk to the safety or welfare of patients or staff, a service change decision that would otherwise require consultation with the CHC had to be made without such consultation, then an obligation to consult the wider public would frustrate the statutory purpose of regulation 27(5) that consultation should not delay changes that are necessary to avoid risk to the health and welfare of patients and staff.
- For his part, Mr Patel submitted that, in this case, the UHB Board was on 30 January 2014 satisfied that the decision to close the in-patient facility had to be taken without consultation because of the risk to the safety and welfare of patients and staff; and thus any duty to consult the public was abrogated simply by virtue of that.
- I appreciate that the Directors' Report for the 30 January 2014 UHB Board meeting said that the decision to close the in-patient facility at the Hospital was "essentially an operational decision made on safety grounds" (reflected in paragraph 32 of the Statement of the then-Chairman of the UHB Mr Martin dated 8 September 2014, which uses a similar phrase); but I do not consider that, when the report is looked at in its proper context, that tells the whole story.
- First, in this context, I do not find the distinction between strategic and operational decisions to be particularly helpful, because (i) the difference between strategy and operations is not always easy to determine in practice, and (ii) section 183(1)(c) of the 2006 Act requires an LHB to consult with the wider public in certain circumstances on "decisions to be made by that body affecting the operation of those services" (replicated so far as consultation with the CHC is concerned in regulation 27(1)(c) of the 2010 Regulations).
- In any event, Mr Bowen submitted that, whilst the 19 November 2013 decision to suspend new in-patient admissions was based upon concerns about patient and staff welfare and safety – as Ms Davies confirmed: see paragraph 40 above – the decision to close the facility was taken only after further reviews and the consideration of the longer term issues which clearly played a significant role in the decision of the Hospital management team and then the UHB Board that the facility should be permanently closed (as again confirmed by Ms Davies in paragraph 48 of her statement, quoted at paragraph 43 above). Ms Davies explained that, in addition to the short term problems which had led to the suspension of admissions, these reviews and further consideration showed that:
- Although, as I have said, the Directors' Report said that the decision to close the in-patient facility at the Hospital was "made on safety grounds", and Ms Davies herself says that the decision was taken that "there was no clinically safe way back to reopening the Hospital to new admissions", I agree with Mr Bowen's submission. In taking the decision to close the in-patient facility, the UHB Board considered more than the short term health and safety of patients and staff: it took into account such matters as the strategic objective of moving patients out of hospitals into the community where they would receive appropriate support; the inadequacies of the Hospital as a healthcare facility for long term or other in-patient care; and – at an undetermined time, but in the relatively near future – the coming on stream of the New Facility which would require consideration and determination of where, in the new model, beds would be and how they would be serviced.
- When the evidence is looked at fairly and as a whole, the decision to close the facility was therefore not based simply upon immediate health and welfare concerns that would render consultation unnecessary. In any event, Mr Bowen submitted, with some force, that, by analogy with paragraph 49 of the Minister's Guidance (quoted at paragraph 80 above), if the decision had been taken simply on the basis of risk to health and welfare, the UHB would have been bound thereafter to have conducted a consultation exercise, if such an exercise would otherwise have been appropriate. The health and welfare argument, on its own, does not therefore get Mr Patel home.
- Mr Bowen submitted, correctly, that, even if the change was properly considered not to be "substantial", the UHB still had a discretion to consult, which had to be exercised lawfully. In this case, he submitted that the UHB Board did not exercise that discretion at all: the UHB Board treated "substantial change" as a consultation gateway and, having found that the change was not substantial, they concluded that consultation was not required simply as a necessary consequence of that finding. The UHB Board thus erred in law. Had they considered the matter as they ought, and taken into account all material considerations, they would have decided to consult the CHC and the public; or, at least, it cannot be said that their decision not to consult would certainly have been the same.
- Before I come on to deal with that issue, let me clear the decks of five matters in respect of which, Mr Bowen submitted, the UHB Board essentially acted on a false premise sufficient to found an error of law.
- First, he submitted that the UHB Board proceeded on the basis that the closure of the in-patients facility at the Hospital was consulted upon, as part of the general strategy to move patients from hospital beds into the community. He relied upon paragraph 32 and 34 of the Statement of Mr Martin, to which I have already referred (see paragraph 84 above). However, Mr Martin is there clearly referring to the consultation that undoubtedly did take place on the UHB general strategy to provide more care in the community and less in hospitals. The Board had been involved in both the formulation and implementation of that strategy. Those broad strategic documents did refer to the closure of the Hospital in favour of the New Facility – it was main plank of the strategy in Ceredigion – but did not refer to the closure of the Cardigan beds, whether at the Hospital or the New Facility. However, in the absence of any reference to it in any of the documents before them, the UHB Board could simply not have been under the (mis)apprehension that that strategy did include that site-specific proposal, upon which consultation had been conducted. The whole thrust of the material before them was to the effect that a decision on consultation about that proposal had to be made, because it had not been previously consulted upon.
- Second, Mr Bowen submitted that the UHB acted on the basis that there was no option but to close the Hospital's in-patient facility. For example, he referred to (a) the directors' report for the 30 January 2014 meeting, where it is said that "no alternative options… have been identified and the beds in the Hospital must be reprovided", with the result that any consultation would be effectively a sham because the consultation could not affect the outcome which was already determined; and (b) the minutes of the 30 January 2014 meeting where one of the issues was said to be "whether [there could be] any meaningful consultation given that no alternative options to those already described have been identified". But, said Mr Bowen, there was an alternative, namely keeping the in-patient facility open and funding the extra nurse resources etc to do so. That was clear from the report for the 4 December 2013 CDG meeting, where there was expressly said to be an option to closure, namely the transfer of community nursing staff to support the facility (see paragraphs 45-47 above).
- However, if that option were chosen, it would be contrary to the strategic policy (upon which there had been full consultation) to move patients from hospitals into the community; and incompatible with the future service model. It would reduce the community nursing capacity which would encourage admission to hospital; it would likely lead to community staff seeking other employment rather than work in the Hospital; and slow the training of staff in the new service model. Closure of the in-patient facility would mean increasing the rate at which nursing staff could be re-skilled to work in the community, for the purposes of the new model. New admissions to the facility were suspended in any event, and, as I have said, Mr Bowen takes no issue with that decision. If consultation were to take place, the evidence is that it would take at least six months (see below). During those six months, the Hospital management feared that staff would be lost (to community care or to nursing care elsewhere), the New Facilities would be at least six months closer and the in-patients ward in the Hospital (closed since February 2014) would have become even less appealing environmentally.
- Of course, given enough money and time, it was no doubt technically possible to reopen the Hospital's in-patients ward such that patients' and staff health and safety would not be at risk. The UHB Board would have been well aware of that, just as they would have been well aware of the financial constraints they were working under. However, the Hospital management and CDG came to the view that, given all of those circumstances and the UHB's general strategy and future model for providing services in the area, that was not an option in practice. That is why they indicated to the UHB Board that consultation would be meaningless, because there was no practical option – in the phrase used by Lord Reed in Moseley at [39], there were no "realistic alternatives" – but to close the facility, and await the New Facility with whatever beds associated with that facility there might be.
- The UHB Board did not, in my view, arguably err by working on a false premise in this regard.
- Third, Mr Bowen submitted that the UHB Board erred by proceeding on the basis that there was to be no material change in service provision, because beds were not lost but only "reprovisioned" by alternatives. However, the closed beds (he said) were not replaced with like-for-like beds; and whether the alternative facility to be provided is a service at a similar or higher level (as the UHB suggest) would be a legitimate matter for consultation.
- However, although there are differences of opinion as to whether the alternative beds provide an equivalent service, the UHB Board were clearly aware that the Hospital in-patient beds were to be replaced by "a mixed economy model" (as it is described in the Directors' Report), i.e. beds in the community supported by community and therapeutic services. The UHB Board did not arguably proceed on a false basis in this regard.
- Fourth, Mr Bowen said that the UHB Board worked under another fundamental error of fact, namely that any consultation would take a minimum of six months. He pointed to in paragraph 34 of the Minister's Guidance, which says that the minimum period for consultation is a period of six weeks (see paragraph 12 above).
- However, limited in scope as any consultation would have been, there would have been a pre-consultation stage during which the scope of the consultation would have been identified, and, in addition to the consultation period itself, a period for assessment and consideration of the results. Mr Bowen accepted that the full period could be several months, perhaps 4-5 months. I do not consider the assessment of a minimum of six months, by those who are experienced in such matters, to be unreasonable.
- Fifth and finally, Mr Bowen submitted that, on the proper construction of the statutory scheme, consultation is required (or, at least, presumed) when the proposed change is either substantial or controversial. In support of that, he relies upon the notes to paragraph 5 of the Minister's Guidance, quoted in full at paragraph 10 above, the relevant part here being:
- He also relied upon the "decision tree" which formed part of the draft protocol prepared by the UHB to assist in determining whether consultation is required (referred to in paragraph 14 above), which asks the question "Is it a 'substantial variation' or controversial?", with the same decision route from that question.
- However, the Guidance is clear that a proposal being substantial or controversial is not determinative of whether there should be consultation. It indicates that whether a change is substantial is key, because there is in effect a presumption that such proposals will be the subject of consultation, although the Guidance indicates that even that presumption might be rebutted if (e.g.) the proposal, whilst substantial, is not controversial. The Guidance strongly suggests that, if a proposal is not substantial and not controversial, it is unlikely that consultation will be required; but otherwise, reading the Guidance as a whole, it simply indicates that the controversiality of a proposal is one important material consideration for the LHB to take into account when considering whether consultation in respect of a non-substantial proposal should be conducted.
- When the evidence – notably the Directors' Report for the 30 January 2014 meeting, and the minutes of that meeting – is looked at as a whole, I cannot accept Mr Bowen's submission that the UHB Board, having determined that the change proposed was not substantial, simply failed to consider their discretion to conduct consultation. Indeed, that is patently not the case. In the report, whether the change is substantial is referred to as "the initial issue", and is dealt with in a single paragraph, concluding that "the proposed change does not meet the 'substantial' criteria". The rest of that part of the report deals with the main material factors that are relevant to the exercise of the Board's discretion to conduct consultation in any event. As all such reports, it has to be read fairly and as a whole, and on the basis that the Board members for whom it is written have expertise and experience in the general background and decision-making such as this. The Board were well aware that the Hywel Dda CHC had requested full consultation (there are express references to that in the report); and that the decision was highly controversial, there being "strong feelings expressed by the population of Cardigan, resulting in an 11,000 signature petition opposing the decision" and concerns expressed by Cardigan GPs (as recorded in the minutes). It was clear that the beds would be reprovided, but in the community with support. They were aware that the decision was permanent so far as the hospital in-patient facilities were concerned, but transitional in the sense that a decision was to be made in relation to beds associated with the New Facility, in respect of which dialogue with the CHC, and other stakeholders including the wider public would continue.
- I appreciate that many in the Cardigan area, including at least some GPs, the League of Friends, local politicians and members of the public, do not agree with the decision to close the in-patient facility at the Hospital, or the decision not to consult on that change; indeed, many clearly hold strong and sincere views to the contrary. Ms Davies frankly accepts that "there is considerable doubt and scepticism relating to the potential effectiveness of community services", which she says the UHB is trying to address (her statement, paragraphs 72 and following). Further, it seems to me that the UHB could have handled this change in a different and perhaps better way to avoid the opposition which it has in the event encountered.
- However, this court is not concerned with whether the way in which a public authority conducted matters could have been improved: it is concerned only with the legality of what they do. I am quite satisfied that the UHB did not err in law in the manner in which approached its statutory obligations to consult or in the conclusion it reached that consultation over the proposed change was neither required not appropriate. Whilst Mr Wales appears to remain unhappy, the CHC cannot complain about the lack of consultation: it has a statutory mechanism for referring a failure to consult it, which it did not operate. For the reasons I have given, the UHB Board was entitled to consider the change not substantial; and, having considered the material considerations (including the controversial nature of the change), it was entitled to conclude that consultation was neither required nor appropriate in this case.
- Finally, Mr Bowen submitted that, even if the UHB did not breach its statutory duty, it breached its common law duty to consult.
- In his written skeleton argument, Mr Bowen suggested that a member of the public was "wholly reliant upon the common law consultation obligations", because he does not have the benefit of the 2010 Regulations. However, an LHB has a duty to consult the wider public under section 182 of the 2006 Act. That is a statutory obligation to consult, which is subject to the regime set out in the Minister's Guidance.
- Mr Bowen also submitted that the loss of the in-patient facility in the Hospital was a loss of benefit for the Claimant, sufficient in itself to trigger the common law consultation obligation. But that submission too has no force. Mr Patel submitted, simply and effectively, the Claimant is in a materially similar position to Ms Moseley, who had the benefit of full council tax benefit, but whose rights of consultation were restricted to those provided by statute. In that case, it was held that, for that consultation to be meaningful, it had to satisfy minimum requirements including, not only general information, but realistic alternatives (which, the Supreme Court held, it did not); but, for the reasons most clearly expounded by Lord Reed, there was in that case no room for the common law duty of procedural fairness.
- In this case, I agree with Mr Patel: as there was no statutory requirement to consult, there is no scope to read in any additional common law obligation to consult, unless the duty of procedural fairness required it. In this case, no foundation for such an additional duty has been suggested: it is not suggested that there was a legitimate expectation in the form of a promise or established practice to consult, or that a failure to consult would result in conspicuous unfairness, or that there has been any breach of the common law duty of fairness at all.
- For those reasons, this application, in all its aspects, fails.
Mr Justice Hickinbottom:
Introduction
Legal and Policy Background
"Each [LHB] must make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on –
(a) the planning of the provision of those services,
(b) the development and consideration of proposals for changes in the way those services are provided, and
(c) decisions to be made by the [LHB] affecting the operation of those services."
"Each [CHC] 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."
The relevant regulations, made under this provision, are the Community Health Councils (Constitution, Membership and Procedures) (Wales) Regulations 2010 (SI 2010 No W37) ("the 2010 Regulations").
"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 [LHBs]… of such matters relating to the operation of the health service within its district as the Council thinks fit."
"(1) It is the duty of each relevant [LHB] 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 [CHC] 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 [CHC] 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 [CHC], or for a substantial variation in the provision of such a service, it must consult that [CHC] at the inception and throughout any such consultation or variation process.
…
(5) Paragraphs (1)… and (3) do not apply to any proposals on which the relevant Welsh… health service body is satisfied that, in the interests of the health service or because of a risk to safety or welfare of patients or staff, a decision has to be taken without allowing for consultation; but in such case, the relevant [LHB]… must notify the [CHC] immediately of the decision taken and the reason why no consultation has taken place.
…
(7) In any case where a [CHC] 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 [CHC] 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 [CHC] 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 [LHB] to carry out such consultation, or further consultation, with a [CHC] as they consider appropriate.
…
(9) In any case where a [CHC] considers that a proposal submitted under paragraphs (1) and (3) by a relevant [LHB] 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 [LHB] to take such action, or desist from taking such action, as the Welsh Ministers may direct."
"4. This new guidance reflects a further rebalancing between continuous engagement and formal consultation, with an even greater emphasis on the former. The new NHS bodies and reformed [CHCs]… must work together to develop methods of continuous engagement which promote and deliver service transformation for their populations. 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.
…
8. The LHBs have strategic responsibility for ensuring safe and sustainable services. It is vital that LHBs and CHCs work together to achieve this across the whole of their area…
…
14. CHCs represent the interests of the public in the health service in Wales. The need to secure safe and sustainable services and access for all to best practice within available resources is equally of concern to the NHS and its users and something which CHCs must work with the NHS in Wales to achieve.
15. CHCs must therefore work with LHBs… to develop continuous methods of engagement which promote and deliver service transformation for citizens.
…
19. Both for continuous engagement and in regard to specific consultations, NHS bodies must ensure that all local interests are addressed… In addition, NHS bodies should also meet their responsibilities with regard to sustainable development…".
"20. Continuous engagement on services must be part of the core business of the NHS in Wales. The NHS must establish and sustain continuing engagement with citizens, staff, staff representative and professional bodies, stakeholders, third sector and partner organisations not only when changes are at issue, but also on a routine basis. It should give people the opportunity to understand its aspirations and achievements, and the challenges it faces, and to influence decisions about changes in direction and specific service developments. This should help it to provide relevant, high quality services, services that the public want and value.
21. The NHS should only seek to implement planned changes when it is satisfied that they have explored the issues first through effective engagement…
22. All NHS bodies should develop a strong public information and engagement approach based on transparency, evidence, and positive leadership…
23. Services will be better designed and more acceptable to citizens if their views are understood and taken into account…
24. The third sector can make a particularly important contribution to effective engagement…. Many voluntary organisations are… able to identify and represent the views and priorities of users and carers and provide a direct link with service users…".
"Considering changes
28. Section 4 outlines the continuous engagement that must take place whether or not any changes are being proposed, and sets out the expectation that this will be the normal mechanism through which service changes are taken forwards.
29. Alongside this, NHS organisations must also manage the relationship with and pay due heed to the statutory right of CHCs to consider change proposals. This is particularly important in determining whether a change should proceed to more formal consultation – i.e. the second stage mentioned in paragraph 5. In considering change proposals, it will be important for CHCs to take into account the views expressed by the advisory mechanisms established by the NHS Reforms (Stakeholder Reference Group; Professional Forum and Partnership Forum).
30. Not all changes will automatically proceed to formal consultation. As indicated above, most issues should be dealt with through the process of continuous and effective engagement and every effort should be made to reach agreement resulting from that process.
Formal consultation
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. In general substantial change should be the subject of formal consultation though it may not be appropriate where the proposal is not controversial. It may also be appropriate that a change, although not substantial, ought to be the subject of formal consultation. LHBs, with their CHCs, should develop a local protocol for dealing with this…. As part of this analysis, the CHC and other stakeholders, in assessing proposals and participating in discussions about consultation, should be conscious of the potential to compromise the LHB's ability to maintain a full service for the whole population it serves.
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:
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:
…"
i) Is it a substantial variation/development?
ii) Is the service variation an urgent change?
iii) Is the proposal controversial or not?
iv) Is the change, although not substantial, to be the subject of formal consultation?
v) Is the engagement plan sufficient to meet the standards in [the Minister's Guidance]?
vi) Does it need to proceed to formal consultation?
A "decision tree" which features as Appendix 1 to the draft, asks, "Is it a 'substantial variation' or controversial?", with the same decision route thereafter.
Factual Background
"Ceredigion requires significant capital investment to support service changes designed for this rural economy. The changes proposed are dependent upon delivery of the 'front of house' scheme for Bronglais Hospital which will be the [Regional General Hospital] for Ceredigion, the community hospitals at Aberaeron and Cardigan and the integrated development at Tregaron (Cylch Caron)."
"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…".
"The building originates from the early 1900s and has had no major programme of upgrading in recent years. The building was not designed as a hospital and has many problems including very small ward areas on different levels which increase staffing costs, doorways that are too small to allow beds through, very few single rooms and no en-suite facilities. The environment is poor from a privacy, dignity and infection control perspective." (page 13).
If it were to continue, the Hospital required urgent investment, the backlog of maintenance as at 2008 being nearly £5.7m. The Cardigan Health Centre was also in a poor state, with a maintenance backlog of nearly £0.2m.
"The [UHB's] aim is to ensure maximum integration, increased community services and access to beds providing care for those with a wide spectrum of needs. It is likely that such a model will provide realistic options to hospital care."
"The Senior Sister provides [an] 'on call' service when there is only 1 [registered nurse] on duty out of hours, however, this is as a safety net and is not sustainable. [Registered nurses] are increasingly voicing their concerns on the stress this is causing to them personally. This is evidenced by their DATIX reporting"
DATIX is the software used by the UHB for healthcare risk management, and incident and adverse event reporting. Additionally, in May 2013, there was a "near miss" incident reported relating to a diabetic patient.
"The staff agreed unanimously that unless more staff were brought in to provide adequate cover to the shifts, i.e. two registered staff per shift (particularly the night shift) then they would accept that the hospital would have to close and that they would be redeployed elsewhere. They agreed that patient safety was compromised with only one registrant on duty and this could not continue any longer." (paragraph 2.10).
"This decision was not taken lightly, but was necessary in view of the ongoing staffing issues at the Hospital in order to be able to proper[ly] address the ongoing staffing issues and ensure patient and staff safety. The temporary closure of the ward would allow for a period of retraining of the staff and would allow for further reviews of the situation at the Hospital to take place. An email was sent to the practice managers of the GP surgeries stating: 'Following a concern raised, Cardigan Hospital will be closed to admissions whilst a review is undertaken of all current inpatients. Please can you undertake a medical review of all your patients currently in Cardigan Hospital as part of the process?'"
I should say at once that there is no challenge to the decision to suspend admissions to the hospital, of which Mr Bowen made no criticism.
"As a result of the further reviews conducted and the consideration of the longer term issues, it became apparent to the County management team that permanent closure of the ward at the Hospital was unavoidable. The root causes of the problems being encountered were fundamental and long term problems such as the poor training and skills of staff, the sickness absences and the very real danger that the [UHB] could not guarantee that shifts would be properly staffed. In addition to this, it was clear that the staff morale was low, and they were not happy with the situation, and the poor environmental conditions at the Hospital itself could not be resolved. A review of the patient notes for the patients remaining at the Hospital demonstrated that the ongoing problem of poor record keeping was also still an issue. During daily reviews of the situation, it became clear that the situation at the Hospital was irrecoverable and there was no clinically safe way back to reopening the Hospital to new admissions."
"Whilst it is possible to provide appropriate level of care within a traditional hospital setting this will require investment to maintain the required or requested establishment. This could only be achieved by transferring services from community to the hospital."
"1. Community nursing staff will be transferred to support Cardigan Hospital, this will reduce the community capacity and encourage admission to hospital, it is likely that community staff will consider alternative employment. Although an option, this not compatible with the future service model.
2. Closure of the hospital providing a transitional service in advance of the new development [i.e. the New Facility]. This will facilitate the development and progress of a service model, irrespective of the proposed building.
This will require training and implementation of staff to work in alternative services, including the development of an integrated community model.
The opportunity will exist to develop a South Ceredigion County palliative care team and the provision of alternative dementia care in the community.
As a commitment has been made to the provision of beds in the South Ceredigion area, the commissioning of alternative facilities will include local nursing homes, residential care including extra care.
An action plan for implementation is being developed."
"CDG agreed the suspension of in-patient beds at the Hospital with a transitional service to be provided elsewhere within the community until it was known what the new model was. Affected staff would work in the community and they needed to be reskilled appropriately.
TP advised that there needed to be discussions with Unions, AM, MP, LA and CHC and a clear audit trail and evidence of these discussions. The process was that beds would be suspended until it was known what the new model was…".
The need for "ensuring there was clarity around what [the] alternative service arrangements were" was noted.
"Although the minutes use the words 'the suspension of in-patient beds', it is clear that no further patients would be admitted to the Hospital and the transitional arrangements made would remain in place until [the New Facility] and the new model of care had been decided upon. Therefore, as per the recommendation, the in-patient beds at the Hospital were closed."
"We are likely to request that a full public consultation exercise be undertaken upon this matter if indeed it is to be permanent position rather than a short term reaction to current staffing and safety issues. We will determine this when we receive and have been able to analyse the full detailed information requested above, and when we will also decide as to whether your proposals are acceptable to patients and the public, are to be challenged, or alternatively we endeavour to achieve some compromise solution."
"We believe that there is a need for the matter to be debated openly and honestly with all stakeholders and with the wide population that is served by the Cardigan Hospital. Therefore, and in this latter respect, I now formally request that the LHB enter into a full public consultation on its plans for the permanent closure of beds in Cardigan Hospital."
(i) "[to] endorse the [CDG decision of 4 December 2013] to close the in-patient facility in Cardigan Hospital with beds being provided through an alternative model supported by in-reach community services with delivery being monitored through the Operational Board"; and
(ii) 'to consider the requirement for formal consultation on this issue with the recommendation that this is not a substantial service change, consultation would be unnecessary and would not be able to provide alternative options to that proposed"; and, "[a]s a result to approve a programme of continuous community engagement".
i) That the future plans for Cardigan, including the New Facility, were in line with the UHB's general strategy which included the development of community services, which would allow more people to receive care (including palliative and continuing care) at home.
ii) That service model would dictate the configuration of future services in Cardigan. The New Facility would need to have beds associated with it, the nature of which would need to be determined over the next few months but "it is likely that a mixed economy of care will be required to meet the range of needs for the health profile of the population". The UHB was committed to progressing the New Facility project as quickly as possible, working with stakeholders such as the Hywel Dda CHC.
iii) Following clinical governance issues, Cardigan Hospital's eight beds had been closed to admissions and the CDG were agreed that the beds were unsustainable, because of concerns about staffing levels, and clinical standards and governance. It was said that:
"Recruitment issues, the age profile of the staff and the high levels of sickness were all making it impossible to keep the small number of beds available open with a need to regularly support the nursing rota through the use of unpredictable and expensive agency cover."
iv) In addition, (a) the environment of the Hospital was not of a standard expected of modern day services, and was becoming increasingly difficult to maintain, (b) there was a need to train staff for the delivery of the new ways of working, and (c) the profile of care in the Hospital was limited and equated to the level of care with enhanced nursing care provided by the community.
v) No beds would be lost to the county: they would be reprovided through alternative means, and these new beds would be supported by community and therapy services. Out-patient facilities would continue to be provided at the hospital until they transferred to the New Facility.
vi) The report recommended endorsement of the CDG decision to close the beds at the hospital.
"The initial issue to consider is whether the closure of a small number of beds (8 in total; with only 4 currently open) on a site that is clinically (and environmentally) unsuitable for patients and their re-provision elsewhere does or does not constitute substantial or significant service change. Whilst there is no formal definition of 'substantial' in this context, considerable, large and extensive are recognised dictionary definitions. It is therefore considered that the proposed change does not meet the 'substantial' criteria.
The [Minister's] Guidance is also clear that consultation should be the exception rather than the rule. A period of formal consultation would take a minimum of six months to be undertaken appropriately and for the feedback to be conscientiously considered; the clinical imperative means the [UHB] would need to close the beds before this process was completed with no alternative options. Thus would clearly impact on the conduct of a consultation and would raise a potentially significant issue in relation to consultation on a pre-determined decision which is one of the key principles of law.
From a legal perspective and to satisfy Gunning principles, any consultation should be meaningful and give consultees the opportunity to influence the final outcome. In the circumstances surrounding Cardigan no alternative options to those already described have been identified and the beds in the Hospital must be re-provided. There would therefore be no opportunity for stakeholders and the population to influence the outcome on what is essentially an operational decision made on safety grounds.
In lieu of consultation, the Guidance suggests that ongoing dialogue would often pre-empt the need for formal consultation and currently that is the intention.
[The report the outlines the engagement there has been and is intended for the future.]
In such circumstances, the issue for decision is whether a formal consultation is necessary or whether continued engagement is appropriate.
The proposal now being made is for a programme of continued and continuous engagement as described above rather than a consultation that is unable to meet the recognised legal standards."
The Parties' Respective Cases
i) The closure of the in-patient facility was a "substantial" change because of the impact it had on patients and thus the public. It was undoubtedly controversial. Therefore, the Defendant had an obligation to consult with the Hywel Dda CHC (by virtue of regulation 27(3) of the 2010 Regulations) and the public (by virtue of paragraph 5 of the Minister's Guidance).
ii) Even if the change were not substantial, in all of the circumstances (especially the controversiality of the decision) there was still an obligation to consult the public under the Minister's Guidance. In fact, (a) the UHB failed to agree a protocol with the CHC for dealing with the consultation where change was not substantial and controversial; and (b) having decided that the change in this case was not substantial, the UHB's Board did not even consider the discretion it nevertheless had to consult. The UHB acted unlawfully in both respects.
iii) In any event, whether or not the Defendant acted in breach of its statutory obligation to consult, it breached its duty to consult at common law.
i) Whilst there is a statutory duty to consult, there is no room in this case for an additional duty to consult at common law.
ii) The claim that the UHB breached its statutory duty to consult is misconceived, because, under the statutory scheme, where consultation by an LHB is perceived as being inadequate, the CHC has a right to raise the matter with the Minister who may, if he agrees, order consultation or further consultation. If the Claimant considers there to have been inadequate consultation, he ought to have requested the Hywel Dda CHC to exercise its powers to make a reference to the Minister and, if it did not, judicially review the CHC for that failure.
iii) In any event, the UHB did not err in finding that this change was not substantial.
iv) The failure to consult was legally justified because the UHB was satisfied that there was a risk to safety or welfare of patients or staff such that the decision to close the in-patient facility had to be taken without allowing for consultation.
v) In any event, the UHB properly exercised its discretion not to engage with consultation for this change, in favour of a process of continuing and continuous engagement with stakeholders.
i) the nature of the UHB's obligation to consult in this case (paragraphs 65-72 below);
ii) whether the closure of the in-patient facilities amounted to a "substantial" change (paragraphs 73-79);
iii) whether the closure of the in-patient facility without consultation was justified on the grounds of the risk it posed to the health and safety of patients and staff (paragraphs 80-88);
iv) in the light of the answer to (ii) and (iii) whether the UHB properly satisfied its statutory requirement to consult (paragraphs 89-105); and
v) whether, in any event, the UHB breached its common law duty to consult (paragraphs 106-109).
The Nature of the Defendant's Duty to Consult
"35. The common law imposes a general duty of procedural fairness upon public authorities exercising a wide range of functions which affect the interests of individuals, but the content of that duty varies almost infinitely depending upon the circumstances. There is however no general common law duty to consult persons who may be affected by a measure before it is adopted. The reasons for the absence of such a duty were explained by Sedley LJ in [BAPIO]. A duty of consultation will however exist in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation. The general approach of the common law is illustrated by the cases of R v Devon County Council ex parte Baker [1995] 1 All ER 73 and R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, cited by Lord Wilson JSC, with which the BAPIO case might be contrasted.
36. This case is not concerned with a situation of that kind. It is concerned with a statutory duty of consultation. Such duties vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or holding public meetings; and so on and so forth. The content of a duty to consult can therefore vary greatly from one statutory context to another: 'the nature and the object of consultation must be related to the circumstances which call for it' (Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at page 1124). A mechanistic approach to the requirements of consultation should therefore be avoided.
37. Depending on the circumstances, issues of fairness may be relevant to the explication of a duty to consult. But the present case is not in my opinion concerned with circumstances in which a duty of fairness is owed, and the problem with the consultation is not that it was 'unfair' as that term is normally used in administrative law. In the present context, the local authority is discharging an important function in relation to local government finance, which affects its residents generally. The statutory obligation is, 'before making a scheme', to consult any major precepting authority, to publish a draft scheme, and, critically, to 'consult such other persons as it considers are likely to have an interest in the operation of the scheme'. All residents of the local authority's area could reasonably be regarded as 'likely to have an interest in the operation of the scheme', and it is on that basis that Haringey proceeded.
38. Such wide-ranging consultation, in respect of the exercise of a local authority's exercise of a general power in relation to finance, is far removed in context and scope from the situations in which the common law has recognised a duty of procedural fairness. The purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority's decision-making process."
i) whether that duty arises in a particular case (and, if it does, the scope of its requirements) will depend upon the statutory context; and
ii) the courts will be slow to add to the burden of consultation which the relevant democratically elected or otherwise democratically accountable body has decided to impose (including, of course, that imposed in statutory guidance); and will only do so if common law fairness requires it, i.e. if there has been a promise or established practice to consult, or where a failure to consult would result in conspicuous unfairness (see the Richard III case at [98(1)-(7)]).
Substantial Change
"A key issue to be determined as to whether formal consultation is required is whether the change is substantial or not. In general substantial change should be the subject of formal consultation though it may not be appropriate where the proposal is not controversial."
It was common ground before me that "substantial change" here means the same as substantial service change in regulation 27(3). As paragraph 31 also applies to consultation with CHCs, that must be right.
"… [T]he court should not construe this scheme as if it were a statute but as a public announcement of what the Government were willing to do. This entails the court deciding what would be a reasonable and literate man's understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence."
That has been echoed, approved and applied many times since, including, recently and after full debate, by the Court of Appeal in R (Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72 at [108] and [123].
i) The number of beds affected was not the only relevant criterion, nor was it necessarily determinative; but it was a relevant factor. There were only eight beds in operation in November 2013 of which four had been vacated by December 2013/January 2104. Mr Bowen did not seek to criticise the decision to suspend new admissions, and, on the basis of his own case, once the four remaining patients had left the Hospital – and, by January 2014, each had a care plan involving such a move – the in-patient beds would not be used until, at the earliest, the end of any consultation period including time for consideration of the consultation responses and any steps required to ensure in-patient facilities would be restored in the Hospital with clinical safety.
ii) The change being considered has to be looked at in the round: it was not simply a decision to close beds. Whilst the services after the closure were of course not the same as before – and there is a difference of opinion between the parties as to equivalency – the change to be considered was the "net" change.
iii) Although the closure of the beds was "permanent" in the sense that it was never intended to reopen beds in the Hospital, the position after the closure was transitional and thus temporary because it would only exist until the New Facility came on stream: Mr Bowen said that that might not be until 2016, and I accept that the facility might not be open until then or (given the uncertainty of timing in relation to such projects) even slightly later. The New Facility required a separate decision as to how associated beds would be provided, not affected by any decision with regard to the Hospital beds in the meantime. In relation to the New Facility, there were on-going discussions as to how and where associated beds would be provided; and there is no complaint in this claim as to the consultation in respect of those changes. Whilst there is no precise time frame the New Facility, the whole strategy of the provision of future health services in the area is premised on the New Facility being available in the relatively near future; it appears that the land has been bought; and it seems that the funds for the New Facility will be forthcoming from the Welsh Government. The services involving patients who might otherwise have been accommodated in the Hospital therefore had a limited and relatively short-term (if uncertain) time frame.
iv) In that transitional period, the number of beds in the county was not reduced, alternative beds being reprovided although not all in hospitals. Some of the patients who might otherwise have been accommodated as in-patients in the Hospital, will be accommodated in non-hospital accommodation, e.g. at home or in a residential home, with appropriate support. That is in accordance with the national and UHB strategy of caring for patients in the community, where possible. It must be assumed that any non-hospital placement will be based on appropriate clinical criteria, and the support will be appropriate. Patients who require a hospital bed will be placed in a hospital, but almost certainly further away from home (e.g. Cylch Caron Hospital, Tregaron, some 40 miles from Cardigan). That will be less convenient for them, and their families. However, the evidence is that the total number of beds which have been made available has been adequate to cope with demand (Ms Davies Statement, paragraph 71)
v) The impact of the change for patients briefly outlined above would have been obvious to the UHB Board.
vi) Furthermore, the UHB's budget in the immediate future is not without limit and is indeed fixed, so that any additional monies spent on one aspect of the service can only be at the expense of another. Leaving aside the capital expenditure that would have been needed to keep the Hospital in-patient facility going, even temporarily, it would have required drawing resources away from care in the community (and would have also thus, amongst other things, slowed down the training of staff for services under the new model). That was contrary to the national and UHB strategy; and, whilst the focus on whether a particular variation of services is upon the extent of the discrete change proposed, the extent of that change may include consideration of changes to other services that will be inevitable if a particular service is to be maintained.
vii) Although whether the service change was "substantial" may be a matter for this court, the question involves an evaluative judgment in an area in which the UHB has experience, expertise and local knowledge. The Senedd has determined that the UHB is the primary decision maker on whether consultation is required, no doubt because of those attributes. Within the statutory scheme, as I have described, the Hywel Dda CHC – and the Minister, whom the CHC can call upon – act as a "watchdog" on behalf of the public interest. The Hywel Dda CHC has exercised its discretion not to refer the failure of the UHB to consult it to the Minister. The decision of the UHB as to whether this change was "substantial" thus deserves considerable respect and deference.
The Health and Safety Risk
i) The root causes of the problems being encountered were fundamental and long term, such as the poor training and skills of staff, staff sickness absences and the very real danger that the UHB could not guarantee that shifts would be properly staffed.
ii) Staff morale was low.
iii) The Hospital environment was poor.
iv) A review of the patient notes for the patients remaining at the Hospital demonstrated that the ongoing problem of poor record keeping was also still an issue.
The Alleged Breach of the Statutory Duty to Consult
"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."
The Alleged Breach of the Common Law Duty to Consult
Conclusion