10 January 2012 #Dispute Resolution
The recent decision Royal Brompton & Harefield NHS Foundation Trust v Joint Committee of Primary Care Trusts , a case involving the judicial review of a decision by a public body for failing to consult properly, is noteworthy for several reasons. Firstly, it is the first instance where a Judicial Review has been brought by one public body against another. However, of greater significance for all public bodies, the case is a salutary warning for all public bodies to ensure that when a consultation is carried out, that it is carried out correctly. In this case, the Royal Brompton & Harefield NHS Foundation Trust (“RBHT”) succeeded in obtaining a quashing order on a consultation carried out by the Joint Committee of Primary Care Trusts (“JCPCT”) because the consultation was held to be unlawful.
The dispute arose following JCPCT’s consultation on the proposed reconfiguration of the paediatric congenital services in England. The report resulting from the consultation recommended that only Great Ormond Street Hospital and Evelina Children’s Hospital should be the centres for children’s heart surgery in London. RBHT challenged the decision to:
a. Not have three centres of children’s heart surgery in London; and
b. Not list RBHT as one of the two centres.
The Grounds for Judicial Review
RBHT raised numerous grounds to quash the consultation on the reconfiguration of paediatric congenital services that the High Court rejected. These rejected grounds included arguments that the decision to only have two centres in London was pre-determined and that the decision to exclude RBHT as a centre for children’s heart surgery was irrational or was rendered unlawful by bias. However, the Court held that JCPCT’s consultation was unlawful because RBHT had been unfairly marked down because of the way that its research and innovation capacity had been assessed.
The consultation that assessed and rated the potential centres was carried out in two stages: the assessment evaluation and the configuration evaluation. The consultation documentation stated that “the information supplied in the assessment stage of the process will not have any direct bearing on the scoring of the configuration evaluation process”. However, contrary to this assurance, RBHT subsequently discovered that its low research and innovation score resulted from information provided in the first evaluation which was then used during the subsequent configuration evaluation. JCPCT never specifically requested information on RBHT’s research and innovation programme, which was the reason for the low score. The Court concluded that RBHT had a legitimate expectation that information gathered in the assessment evaluation would not be used in the configuration evaluation, that such information had been used and that the use of that information had seriously distorted the consultation against RBHT as a result. The Court rejected an argument that even if RBHT had had the opportunity to provide further information on its research and innovation capability, it would have made no difference to the outcome of the consultation.
Consultations are often carried out in the face of tight deadlines and budgetary constraints. In the current climate of budget cuts and reductions in public expenditure, it is more crucial than ever that public bodies understand how important it is to ensure that every aspect of a consolation process is consistent and lawful and are aware that any aspect of the decision making process is open to scrutiny. Failure to get the consultation right first time may well be fatal to any proposed reforms that a public body is seeking to effect.