Issues considered
The JCPCT was established in September 2010 to conduct a formal consultation on the proposed reconfiguration of the provision of paediatric cardiac services in England. The consultation had recommended that two hospitals be chosen as the two children’s heart surgery centres in London (Great Ormond Street Hospital and Evelina Children’s Hospital).
The Royal Brompton & Harefield NHS Foundation Trust (RBHT) took legal action over the outcome of the consultation. The High Court held that the consultation process had been seriously distorted and the resulting unfairness was “of such a magnitude as to lead to the conclusion that the process went radically wrong”.
Mr Justice Owen rejected the majority of the RBHT’s complaints, including that the:
- Determination to have two rather than three London centres providing paediatric congenital cardiac services had been taken prior to the consultation exercise, as far back as 2010.
- JCPCT (as the relevant decision making body) had acted irrationally in (1) excluding a three London centres option from the preferred options in the consultation and (2) in excluding the Royal Brompton from the two London centres chosen.
- Consultation was fundamentally flawed and had misled the public.
- Consultation process was vitiated by bias, or by the appearance of bias.
Legitimate expectation
However, the RBHT succeeded in its argument that it had not been given the proper opportunity to put forward the quality of its research and that this was not taken into account when scoring the Trust on its quality. As such, the JCPCT could not have made a fair decision.
Owen J found that, “the consequence of the failure to meet the RBH Trust's legitimate expectation was seriously to distort the consultation process. Those responding to the Consultation Document would inevitably have proceeded on the premise that the RBH Trust's capacity for research and innovation was poor… The assessment of the quality of the service provided by the RBH Trust would plainly be regarded as of central importance by a consultee when considering the options for reconfiguration of PCCS.”
Owen J found that the Trust’s legitimate expectation that the information it provided to the consultation would be properly used had not been met, and ordered that the consultation must therefore, be quashed.
Comment
This is an important decision because it is the first time that a Foundation Trust (i.e. an independent body) has gone to court to protect patient services. Rather than challenging a decision – which is the usual reason for making a judicial review application – the challenge was against the consultation process itself.
Mr Justice Owen took the opportunity to discuss the merits of the claim in the context of a number of issues, which collectively remind public bodies of the need to act properly during the consultation process. He also highlighted that it is not the role of the court to interfere with political decisions, including where and how far to cut back in the public sector. The court is only there to ensure that decision making bodies provide a fair process through which those decisions can be made.
The decision emphasises the importance of ensuring that each consultation process is fair. When carrying out a review of the functions of another public body (including a healthcare provider), that review must be comprehensive, transparent and ensure an effective communication procedure is in place to deal with concerns about the method of the review.
Whether there are any additional issues arising from this case is likely to come to light if the JCPCT appeals the decision and/or if the RBHT seeks a judicial review of a decision made against it in relation to the subject matter of the current review (i.e. the future of children’s heart surgery).