2011 11 Health Care

Thursday 1 December 2011

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Royal Brompton & Harefield NHS Foundation Trust v (1) Joint Committee of Primary Care Trusts (2) Croydon Primary Care Trust (on its own behalf and as representative of all Primary Care Trusts in England) [2011] EWHC 2986 (Admin) (Owen J): On allowing the application the court held that a consultation on the reconfiguration of children's congenital heart services in England was unlawful by a breach of legitimate expectation relating to the scoring of the hospitals concerned.

The Claimant applied for judicial review of a consultation exercise undertaken by the first defendant body concerning the reconfiguration of paediatric congenital cardiac services in England. The Claimant’s paediatric service provided a specialist service for children's heart and lung disease and comprehensive paediatric critical care services. The NHS Medical Director requested the NHS National Specialised Commissioning Group to review the provision of paediatric congenital cardiac services in 2008. The 1st Defendant, in 2010, had the responsibility for the conduct of the consultation on the review and for taking decisions on matters which there the subject of the consultation exercise. The 1st Defendant published a Consultation Document In March 2011. The key proposals were

(1) that the number of centres providing paediatric cardiac surgical services should be reduced from 11 to either 6 or 7; and

(2) the service be reconfigured into one of four national configuration options (which included two London surgical centres, Evelina Children's Hospital and Great Ormond Street Hospital for Children).

The Claimant challenged the consultation process. The basis for the challenge was the decisions to exclude a "three London centre" option from the proposed options and to exclude the Claimant from the preferred "two London centre" options were legally flawed.

On the arguments advanced on behalf of the Claimant the Court held the following:

(1) That there had been predetermination by the 1st Defendant was unsustainable and the Defendant had been entitled to identify and to consult on its preferred options. This did not include a "three London centre" proposal excluding the Claimant. The Curt held this did not amount to predetermination (paragraph 111);

(2) The decisions made the 1st Defendant as to its preferred options were not justiciable and there been no decision with legal consequences for the Claimant. It could not be said that to prefer "two London centre" options was irrational (paragraphs 115-116, 119);

(3) The process had not been vitiated by misinformation or bias. The 1st Defendant had not merely rubber-stamped the group's recommendations (paragraphs 142, 144 and 147);

(4) However clear and unequivocal representations had been made that the criteria and scoring for the "configuration evaluation" were separate from the "assessment evaluation". Also that the information supplied in the assessment stage of the process would not have any direct bearing on the scoring of the configuration evaluation process. However those representations were breached:

“[154]It is submitted on behalf of the claimant that the representation is to be found in the self-assessment template form, which drew the distinction between the two stages of the evaluation process, the "Assessment Evaluation" and "Configuration Evaluation." The form said:

"The evidence you supply in this exercise will be assessed as part of the evaluation process we will undertake, and therefore will ultimately inform the final recommendation.

The entire evaluation process has 2 discrete stages – Assessment Evaluation and Configuration Evaluation. This process will fulfil the first stage of the assessment evaluation.

It should be noted that the criteria and scoring process for the Configuration Evaluation have not yet been determined. This will be communicated to all stakeholders in due course. However, the criteria and scoring for the Configuration Evaluation is separate from the Assessment Evaluation. The information supplied in the assessment stage of the process will not have any direct bearing on the scoring of the configuration evaluation process.


Scores will be allocated against each criterion, which will come together as a final score for each centre.

Individual scores for each centre will help identify the configuration options, which will then be tested against criteria such as ease of access, affordability and deliverability, and the risks of reconfiguration. The exact scoring mechanism for this stage has yet to be determined."

[155] The claimant contends that such statements amounted to a clear and unequivocal representation, but that contrary to that representation, the scoring from the Assessment Evaluation was used in the Configuration Evaluation.

[156] Mr Garnham sought to argue that the statements did not amount to a clear and unequivocal representation with the effect for which the claimant contends, relying in particular on the statement that "Individual scores for each centre will help identify the configuration options". The scores produced by the evaluation assessment would obviously affect the identification of configuration options; but that does not undermine or qualify the clear and unequivocal representation that the information supplied in the assessment stage would not have a direct bearing on the scoring of the configuration evaluation process.”

The conclusion being that must inevitably have affected the responses to the Consultation Document in a manner seriously adverse to it and it followed that the consultation exercise was unlawful.

“[175] I recognise that when addressing the issue of which the London centres are to be preferred, the Consultation Document identified reasons for preferring GOSH and the Evelina. But from the viewpoint of a consultee, the question of which two London centres should be included in the proposed reconfiguration cannot be viewed in isolation from the question of whether there should be two or three London centres. Bearing in mind that each of the centres scored equally under 'Sustainability', had the RBH Trust been scored equally with GOSH in relation to research and innovation, it would have been a legitimate line of thought for a consultee, weighing the relevant considerations, to have arrived at the conclusion that notwithstanding the analysis of the projected case load (see paragraph 126 above), a three London centre configuration was to be preferred, a configuration that would have the advantage of preserving the unique features of a specialist heart and lung hospital. But such a conclusion was in effect precluded by the assessment of research and innovation at the RBH Trust as 'poor'.

[176] As Sullivan J observed in R(Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin),

"63. 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".

But I have come to the conclusion that that is the case. 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; and it seems to me that the low scoring of the RBH Trust on 'quality' in the weighted scoring of the London centres, must inevitably have affected the responses to the Consultation Document in a manner seriously adverse to the Trust.”

The consultation was quashed (click here for transcript).

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