QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a High Court Judge)
| THE QUEEN ON THE APPLICATION OF ANNA HINSULL
|- and -
|NHS DORSET CLINICAL COMMISSIONING GROUP
Fenella Morris QC and Annabel Lee (instructed by Capsticks) for the Defendant
Hearing dates: 17th and 18th July 2018
Further Written Submissions until 25 July 2018
Crown Copyright ©
Sir Stephen Silber:
(i) The Dispute
•The Statutory Framework is dealt with in paragraphs 30 and 31 below.
•The Issues are dealt with in paragraph 36 below.
•The Applicable Legal Principles are dealt with in paragraphs 40 and 41.
•Issue 1: The Sufficiency of Social Care Workforce Issue is dealt with in paragraphs 42 to 91 below.
•Issue 2: The Alternative Investigations Issue is dealt with in paragraphs 92 to 102 below.
•Issue 3: The New Bed Closure Test Issue is dealt with in paragraphs 103 to 125 below.
•Issue 4: The Travel Times Issue is dealt with in paragraphs 126 to 157 below.
•Issue 5: The Consultation Issue is dealt with in paragraphs 158 to 175 below
•Further Matters are dealt with in paragraphs 176 and 177 below
•The Conclusion is dealt with in paragraph 178 below.
•The Appendix contains a Summary of the SWAST Report.
(ii) Why Dorset needed to change the way its Health Services were provided
1. On a national level, the crisis in both the NHS and social care sector has been widely reported. Independent research had established that NHS funding was at least £4 billion lower than was needed in 2018/19.
2. Dorset's A&E capacity was described in the Claimant's Statement of Facts as "seriously over-stretched". A&E departments declared numerous OPEL alerts (diverting patients) last winter, waiting time targets had been missed on more than 200 occasions in December 2017 alone. The social care sector was facing unprecedented funding cuts with (a) Dorset having to make savings of £5.6 million from its adult social care budget; (b) Poole Borough Council projecting at least a £1 million shortfall in funding; and (c) Bournemouth Borough Council having to make savings of £4 million. In March 2017, BBC research placed Dorset in the top 30 areas of the country where discharge from hospitals was delayed by a lack of social care provision.
3. Demand for health and social care services within Dorset was, however, increasing with a population older than the national average. This placed particular demands on the health and social care system. More people were living longer, with more complex and long-term conditions. By 2023, the population of Dorset will have grown from around 750,000 to over 800,000 with older people making up much of this increase. Estimates predicted a 30% increase in demand for acute hospital beds by 2026. The Claimant's Statement of Facts observes that "Demand for hospital beds is predicted to grow significantly from the currently unsustainable levels due to demographic and other pressures".
4. There were also national and local shortages of staff with key specialist skills. Dorset faced particular challenges in recruiting staff employed in the health and social care sectors. Dorset also had a high number of staff approaching retirement age and difficulty in filling vacancies.
5. The CCG was spending more money than it received, and it was facing a shortfall of some £158 million each year by 2020/2021.
6. The CCG concluded as a result of its pre-consultation analysis that the current model of NHS care in Dorset could not continue as it would increasingly fall behind the needs of the people of Dorset and their carers as well as becoming increasingly unaffordable.
(iii) Early stages of the Clinical Services Review ("CSR")
i) Services organised around people;
ii) Supporting people to stay well and take better care of themselves;
iii) Delivering more care closer to home;
iv) Integrated teams of professionals working together;
v) Centralised hospital services.
i) The quality of care and patient safety;
ii) Access to services (travel);
iii) Cost and affordability;
iv) The impact on staff (workforce);
v) Whether the changes would be delivered within the required timescale (deliverability); and
vi) Other factors such as research and education.
(iv) The Formal consultation
(v) The Post-Consultation work
i) Transport / travel times (emergency and non-emergency);
ii) Clinical risk;
iii) Equality Impact Assessment;
iv) Health and Wellbeing. ?
(vi) The Decisions
B. The Statutory Framework
(a) hospital accommodation;
(b) other accommodation for the purpose of NHS services;
(c) medical, dental, ophthalmic, nursing and ambulance services;
(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as the group considers are appropriate as part of the health service;
(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service; and
(f) such other services or facilities as are required for the diagnosis and treatment of illness.
(a) the discharge by the Secretary of State and NHS England of their duty under section 1(1) of the Act (to promote a comprehensive health service);
and (b) the objectives and requirements for the time being specified in the NHS Mandate published under section 13A of the Act.
"(1) Each CCG must exercise its functions with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness.
(2) In discharging its duty under subsection (1), a clinical commissioning group must, in particular, act with a view to securing continuous improvement in the outcomes that are achieved from the provision of the services."
(1) in the exercise of its functions, to act with a view to securing that health services are provided in a way which promotes the NHS Constitution (section 14P(1)(a));
(2) to exercise its functions effectively, efficiently and economically (section 14Q)
(3) in the exercise of its functions, to have regard to the need to (a) reduce inequalities between patients with respect to their ability to access health services; and (b) reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services
(4) exercise its functions with a view to securing that health services are provided in an integrated way where it considers that this would improve the quality of those services, reduce inequalities between persons with respect to their ability to access those services, or reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services (section 14Z1).
C. The Issues
(1) The CCG failed to have regard to the relevant consideration of whether there would be a sufficient social care workforce to deliver its new integrated model of community service ("Issue 1-The Sufficiency of Social Care Workforce Issue")
(2) The CCG failed adequately to investigate and reach a conclusion on whether alternative community provision could be put in place, before deciding to close hospital beds, contrary to the Tameside duty of careful inquiry with its duty to make further inquiries as to (i) what alternative community provision would need to be put in place to achieve the reduction in demand for acute hospital care; (ii) how the workforce for this community provision would be recruited; and (iii) how it would be paid for ("Issue 2-The Alternative Community Provision Issue");
(3) The decision to cut the acute services fails to comply with the NHS England's "bed closure" test which stated that NHS entities would have to show that significant bed closures can meet one of the three new conditions set out in the bed closure test. "…before NHS England will approve them to go ahead". It is contended that the CCG erred (i) in concluding that the bed closure test did not apply to the consultation process leading to the Decisions; (ii) failing to consult on the bed closure test; (iii) in that its consideration of the bed closure test was inadequate and was not provided to the Governing Body ("Issue 3-The Bed Closure Test Issue").
(4) The CCG failed to consider adequately the impact of increased travel times in emergency cases to Bournemouth Hospital, which was the major emergency hospital rather than Poole Hospital which was the more centrally located hospital ("Issue 4-The Travel Times Issue").
(5) The CCG failed to supply sufficient information to consultees in respect of 24/7 consultant care and/or the probability of large scale acute bed closures especially at Poole Hospital. In consequence, the CCG failed to conduct the consultation fairly. ("Issue 5-The Consultation Issue").
D. The Applicable Legal Principles
(a) "The decision-maker has to balance the interests of several different groups, not simply those represented before the court". R (on the application of Royal Brompton and Harefield Hospital NHS Foundation Trust v Joint Committee of Primary Care Trusts and another  EWHC Civ 2986 (Admin) at paragraph 90 per Arden LJ.
(b) "The decision-maker may be in a better position to do this effectively and in such a way as to prevent the interests of one particular group receiving inappropriate precedence over the interests of other groups." (ibid).
(c) "With the benefit of hindsight, it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test." (R (Greenpeace) v. Secretary of State for Trade & Industry  Env LR 29 at paras 62 per Sullivan J).
(d) "It must also be recognised that a decision-maker will usually have a broad discretion as to how the consultation should be carried out". (ibid).
(e) "Parliament, wisely, does not attempt to limit the various ways in which CCGs could provide arrange for the provision of health care. It follows, in my view, that Parliament intended CCGs to enjoy a broad discretion when choosing how to commission." R (Hutchinson) v Secretary of State for Health and Social Care  EWHC 1698 (Admin), at paragraph 94 per Green J.
(f) "…where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such" Khatun v Newham BC  QB 37 at paragraph 35 per Laws LJ.
(a) (a) "Not all objections to the accuracy of the consultation process will lead to a full reconsideration of provisional decisions. It is not enough, therefore, for a party seeking to quash a consultation exercise to point to some facts that are inaccurately presented. Their inaccuracy may on reflection lead only to a minor and immaterial scaling down of the case supporting the provisional proposal for change. The arguments for change will then not be as black and white as they appeared in the consultation document, but different shades of grey. Determining the strength of those shades of grey is generally not a matter for the court but the decision-maker. R (on the application of Royal Brompton and Harefield Hospital NHS Foundation Trust v Joint Committee of Primary Care Trusts and another) (supra) at paragraphs 90 per Arden LJ.
(b) (b) In short, it is inherent in the consultation process that it is capable of being self-correcting. This has to be borne clearly in mind, for the various reasons already indicated, the courts should therefore avoid the danger of stepping in too quickly and impeding the natural evolution of the consultation process through the grant of public law remedies and perhaps being led into areas for the professional judgment of the decision-maker. It should, in general, do so only if there is some irretrievable flaw in the consultation process". ibid at paragraph 91
(c) "A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful" R (Greenpeace) v. Secretary of State for Trade & Industry  Env LR 29 at paragraph 62 per Sullivan J.
(d) "In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went 'clearly and radically' wrong." Ibid at paragraph 63.
E. Issue 1: The Sufficiency of Social Care Workforce Issue
(i) The Claimant's case on the Sufficient Social Care Workforce Issue
"…we have yet to understand the gaps in the social care workforce. We expect there will be a need for some recruitment, changes in the skill mix across staff groups and new ways of working, such as developing nursing and allied professional roles across community and primary care services, including community, pharmacy and pharmacists in a range of settings".
"the shortages in workforces in both health and social care, at all levels, create severe difficulties for providers. Whilst the reconfigurations of acute and community health sites may enable the NHS workforce, the County Council is concerned as to the impact of increased demand on the social care workforce".
"workforce shortages are a big problem, but the hope is that a networked Health system would attract more staff, given the opportunities to build skills and work in integrated teams".
"noted that to successfully implement the proposals within both the [CSR] and the Mental Health Acute Care Pathway Review, there would have to be a sufficient work force in place. Whilst recognising the CCG's intentions to create networks to support and develop the workforce, it remains to be seen whether recruitment and retention can meet the demands of the services. The Committee recommends that the CCG continues on workforce development, alongside partner organisations, to ensure that planned changes can be properly supported and recognises that this is the role of the STP partnership". (Emphasis as in the original).
(a) "ensure we have the "right staff in the right places to deliver services across Dorset";
(b) "identify and address the work force challenges where there are existing gaps and shortages, as well as in areas where there is likely to be a future challenge in workforce supply".
(c) "work in partnership to address these challenges together, through recruitment, networking and development of skills".
(ii) The CCG's Case on the Sufficient Social Care Workforce Issue
(iii) Discussion and Conclusions on the Sufficient Social Care Workforce Issue
"the work streams within that portfolio include ….
recruitment and retention of staff: the vision is to develop a system-wide approach to attract new staff and retain existing staff within the health and social care sector in Dorset;
developing our staff: the vision is to improve the development opportunities for staff, to ensure the future workforce supply, to improve retention and morale within health and social care organisations in Dorset, and to work in greater partnership with education providers to ensure future workforce supply is available;
supporting our staff through change: the vision is to improve the working environment for staff by ensuring they are engaged and involved in changes that affect them;
workforce planning: the vision is to ensure that a workforce with the required skills and competencies to deliver new models of care is available". (emphasis added)
"Clinical staff were therefore extensively involved in the CSR process. Both Trusts, at both clinical and managerial level, were satisfied with the demand modelling assumptions that underpin the CSR which were tested and agreed with the clinicians at [Poole Hospital] and [Bournemouth Hospital] ... Confidence in the modelling has been gained from having the Trusts' staff involved in the development of the model."
"With the benefit of hindsight, it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test."
E. Issue 2: The Alternative Investigations Issue
(i) The Claimant's Case
"… the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?" Secretary of State for Education and Science v Tameside Metropolitan Council  AC 1014,1065 per Lord Diplock.
(ii) The Stance of the CGG
"94... Parliament, wisely, does not attempt to limit the various ways in which CCGs could provide arrange for the provision of health care. It follows, in my view, that Parliament intended CCGs to enjoy a broad discretion when choosing how to commission."
(iii) Discussion and Conclusion on the Alternative Investigations Issue
F. Issue 3: The New Bed Closure Test Issue
(ii) The Statutory Landscape relevant to the Bed Closure Test
(iii) The Introduction of the Bed Closure Test
(1) strong public and patient engagement;
(2) consistency with current and prospective need for patient choice;
(3) a clear, clinical evidence base; and
(4) support for proposals from clinical commissioners.
"From 1 April , local NHS organisations will have to show that significant hospital bed closures subject to the current formal public consultation tests can meet one of three new conditions before NHS England will approve them to go ahead."
(1) Demonstrate that sufficient alternative provision, such as increased GP or community services, is being put in place alongside or ahead of bed closures, and that the new workforce will be there to deliver it; and/or
(2) Show that specific new treatments or therapies, such as new anti-coagulation drugs used to treat strokes, will reduce specific categories of admissions; or
(3) Where a hospital has been using beds less efficiently than the national average, that it has a credible plan to improve performance without affecting patient care (for example in line with Getting It Right First Time programme).
(iv) The Contentions on the Bed Closure Test Issue
(v) Did the Bed Closure Test apply to the CCG's proposals?
"Mr. Goodson is correct that the test being formally applied from 1 April 2017 will not apply, as the CCG's proposals had completed the NHS England formal assurance process prior to consultation" and that "the tests do not formally apply to the Dorset scheme".
(vi) Did the CCG have to consult in respect of the Bed Closure Test?
(vii) Did the CCG take into account the requirements of the Bed Closure Test to the satisfaction of NHS England?
"While the tests do not formally apply to the Dorset scheme, we are confident that the CCG have considered the new tests, and will continue to monitor the impact of proposed changes through implementation."
(viii) Conclusion on the Bed Closure Test Issue
G. Issue 4: The Travel Times Issue
(ii) The SWAST Report and the Decision
"… reassured by the extensive work undertaken that for most people the impact of changes on travel times would be negligible or shorter, and where people may be subject to longer travel times they would experience better outcomes"
(iii) Discussion and Conclusions on the Travel Times Issue
"…with the benefit of hindsight, it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test"
H. Issue 5: The Consultation Issue
(ii) 24 Hour Consultant Care
"National clinical evidence shows that more lives are saved when people are treated in the specialist centres with senior specialist staff on site 24 hours a day, 7 days a week. At the moment, none of Dorset's hospitals offer 24/7 consultant care on site."
"National and international evidence show that more lives are saved if people are treated in specialist centres with senior staff available on site 24 hours a day 7 days a week; however, none of the hospitals in Dorset currently provide this".
"Patients needing emergency care would benefit by being taken to a hospital with specialist consultant-led services where the ambition is to have these available 24 hours a day, seven days a week"
(iii) Acute Bed Closure
(iv) Conclusion on the Consultation Issue
I. Further matters
"A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful" [and] "a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went 'clearly and radically' wrong."