All's fair: legal challenges to hospital closure consultation
Two recent cases on hospital closures suggest that public bodies may have to provide more detailed justification for their decisions, explains Michael Imperato
Hospital closures usually attract public opposition fuelled by emotion. Inevitably some have prompted legal challenges, usually in a form of a judicial review targeting the fairness of the consultation. Two recent decisions illustrate some common issues and the approach of the courts.
The case of Cherwell District Council v Oxfordshire CCG involved a legal challenge to a consultationby a number of district councils to ‘The Big Consultation’, a consultation carried out by Oxfordshire Clinical Commissioning Group (CCG) on proposed changes to services at Horton General Hospital in Banbury.
The consultation was launched on 16 January 2017 and sought views on proposed changes to services. It was split into two phases with Phase 1 looking at changes to acute stroke services and home care in Oxfordshire and critical care, planned care and maternity services at the Horton General Hospital. Phase 2 related to A&E departments in Oxfordshire, children’s services and community hospitals, and was due to be scheduled for late 2017 before being abandoned by Oxfordshire CCG.
On 7 December 2017, the High Court ruled that the consultation carried out by the Oxfordshire CCG was not unlawful ( EWHC 3349 (Admin)).
‘Intensely fact specific’
The ‘Keep the Horton General’(KTHG) campaign group is appealing the High Court’s decision on the same grounds as heard in the High Court.
The first ground is on the hospital’s failure to address the interdependency between permanent bed closures and community provision.
The second ground is the hospital not properly consulting on new NHS England policy relating to bed closures; that the defendant should have consulted on, or informed the public about, the new bed closure test, announced by the chief executive of NHS England on 3 March 2017, when the consultation was nearly complete.
The new bed closure test is an additional test or criterion where bed closures were proposed to the existing four general tests. It was to take effect on 1 April 2017. The additional test was that the proposer must:
(a) 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
(b) show that specific new treatments or therapies, such as new anti-coagulation drugs used to treat strokes, will reduce specific categories of admissions; and/or
(c) 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.
The third ground is in relation to Oxfordshire CCG’s failure to set out both pros and cons of the bed closures.
The final ground is the late admission of new evidence on the final day of the High Court hearing, despite it being requested months earlier.
In the High Court hearing at first instance Mostyn J decided that there had been no unfairness in the consultation. Looking at the data, the judge decided that there was no material interdependency between the matters that were being considered in phase one and those that would be considered at phase two. For example, only a very small fraction of the paediatric unit’s work was concerned with neo-natal babies and so paediatrics would be unlikely to be significantly affected by the closure of obstetrics.
Mostyn J said that the consultation was indeed flawed in not informing the public about the new bed closure test but the public had been ‘de facto’ consulted on the issue raised by the bed closure test—i.e. whether there was sufficient alternative provision—because the consultation document raised this issue.
Although this case had the potential to raise issues of broader impact, ultimately it turned on its own facts—the data on interdependency and the details of the consultation document.
The judge described the question of whether a consultation was fair as “intensely fact-specific”, “instinctive” and “intuitive”. He said fairness is “likely to be determined by the ‘I know it when I see it’ legal technique.”
However, of particular relevance are some of the judge’s comments on multi-phased consultations at para [12(ii)]:
“To split a consultation into two phases (as here) is not eo ipso unfair, but if that route is followed great care will have to be taken to ensure that decisions made following phase 1 do not pre-determine or heavily influence decisions to be made following phase 2.”
That could be read as a statement of a wide general principle—i.e. that a decision to split a consultation into two phases will be unlawful if phase one will pre-determine or heavily influence phase two.
In Dorset, meanwhile, the campaigners in the case of R (ex parte Hinsull) v NHS Dorset CCG  EWHC 2331 (Admin) sought to challenge the decision of the Dorset Clinical Commissioning Group of 20 September 2017 which made significant changes to the configuration of health services in the area.
Changes to the hospitals were part of a much wider re-think as to how best to organise health and social care in the future. Work began long before Sustainability and Transformation Plans (STPs) were invented and the defending CCG could point to pre-consultation stakeholder engagement during which a large number of ideas were whittled down to a binary choice to designate Bournemouth or Poole Hospitals as the major emergency care facility in the area. The claimant failed on all grounds.
The principle grounds of challenge related to workforce issues, the bed closure test, and travel times.
The CCG’s strategy rests on accepting the analysis of the 2014 review by Sir Bruce Keogh into emergency and urgent care. He concluded that many who attended A & E departments would do better by receiving care in the community.
In Dorset this would mean reducing aggregate attendances at the hospital but, as critics pointed out, this means adequately resourcing adult social care and children’s services. The councils were already struggling with skills shortages and large budget cuts so the claimants argued that the NHS proposals were not based on a sufficiently realistic assessment of the required workforce. The judge disagreed, for there was evidence that this was very much in the CCGs mind.
The bed closure test
The CCG argued (and NHS England advised) that the test did not apply as its proposals had already been approved and authorised for consultation by the time it took effect.
The judge rejected this; the test did apply. But he ruled that it had been satisfied because NHS England was the sole arbiter of compliance – a conclusion that could well be challenged in future cases. The wording of the test is not that it should be approved by NHS England but that the CCG could demonstrate sufficient alternative provision. Thus, the bed closure test applies, in general terms, to a service reconfiguration regardless of when the reconfiguration began or whether the commissioner has already passed NHS England's assurance process.
As often happens in cases of this kind, local communities fear that additional travel times will compromise clinical outcomes but legal challenges only succeed if it can be shown that consultations did not adequately explain the advantages and disadvantages of centralisation. In this case, the dispute centred on analysis carried out by expert consultants, and by a supplementary sampling exercise conducted by the ambulance service.
The Ambulance Trust analysed 21,944 cases and concluded that in 0.6 per cent of those cases “the extended journey time may increase the clinical risk”. Against that, there is undisputed evidence that lives of patients with heart problems and stroke victims would be saved by the better facilities at Bournemouth Hospital on becoming an emergency care hospital as compared with those offered at Poole Hospital. In addition, the chief executive of Poole NHS Trust reported that some of the more seriously ill patients from Dorset – that is, those suffering from heart attacks or vascular problems – including residents of Purbeck, have been treated at Bournemouth Hospital and those arrangements have been deemed safe by Commissioners and regulators, and that those acutely ill patients received treatment within an acceptable time period. There was also evidence that for most people the impact of changes on travel times would be negligible and where patients may be subject to longer travel times, they would experience better outcomes.
Here claimants could not convince the court that there was anything defective in this aspect of the CCGs decision making and this illustrates a common problem for claimants who will be faced with a mass of analysis and data complied by the decision maker.
Failure to refer?
The judge has clearly been much influenced by the fact that the Joint Health Overview and Scrutiny Committee (JHOSC) had not exercised its right to refer the proposal to the Secretary of State. He used this as evidence that local authorities did not have undue anxiety about issues such as workforce planning, bed closures or travel times, saying:
“The local authority had a crucially important power under rule 23(9) of the Local Authority (Public Health, Health and Wellbeings Board and Health Scrutiny) Regulations 2013 to make a reference to the Secretary of State where it considers either that local authorities have not been adequately consulted on proposals for the substantial development of the health service in the area, or that the proposals are not “in the interests of the health service in its area”. In this case, if the local authorities had concerns about whether there would be a sufficient social care workforce to deliver the CCG’s new integrated model of community service, this would have been a matter of crucial importance to them as without a sufficient workforce, they would have been unable to comply with their obligations.”
One wonders if the judge might have placed too great a reliance on this as it may be that the local authorities were wrong not to make a referral.
Mark of approval
It was also alleged that the CCG did not provide sufficient information to consultees and the consultation was misleading in respect of two matters. The first matter was that consultation document indicated 24/7 consultant care was promised but these were stated to be ambitions.
Second, it is said that the consultation document did not say that there would be large-scale bed closures. It was countered that this point fails to appreciate that the CCG does not commission beds. In any event, the judge considered that there was much evidence that it was widely known that there would be bed closure.
The importance of a ‘mark of approval’ of the consultation is clear from the judgment where it was stated that “the consultation process was subject to scrutiny by the Consultation Institute’s Independent Quality Assurance process and it was deemed to have reached Best Practice status. The consultation responses were independently analysed and reported on by Opinion Research Services and quality assured by the Consultation Institute. The Consultation Institute awarded the CCG “best practice” accreditation for the CSR consultation. In addition, the CCG’s approach to consultation was also commended by Opinion Research Services.”
Therefore, CCGs will undoubtedly be making sure their consultations are now accredited. One wonders if that should really have such weight attached to it as the court applied in this matter but it is bound to assist the decision maker’s credibility.
Michael Imperato is a partner at Watkins & Gunn Solicitors