Fenella Morris QC and Rory Dunlop, instructed by Capsticks, represented the defendant Oxfordshire CCG in the case of Cherwell District Council v Oxfordshire CCG, in which the fairness of a hospital consultation was challenged, with the court deciding that there had been no unfairness.
This was primarily a consultation challenge. On 16 January 2017, the defendant launched a consultation exercise called ‘the Big Consultation’ on changes to healthcare provision in Oxfordshire. This was to be the first of two phases. The first phase included various changes to Horton General Hospital, for example the permanent closure of the obstetrics unit and approximately 100 hospital beds. The second phase would consider other aspects of the provision at the Horton.
The claimants (district councils close to the Horton) and the interested party (a campaign group called ‘Keep the Horton General’) challenged the consultation. Their primary challenge was to the decision to consult in two phases. They argued that this unlawfully ‘loaded the dice’ for the second phase— e.g. because taking away obstetrics in the first phase made it more difficult to retain paediatrics at the second phase.
They also argued 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 court 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.
The judge said that the consultation was 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 import, 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.’ That is, in truth, probably the only principle of general application in the judgment.
However, parties may try to rely on some of the judge’s other comments, in particular the statement 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. Decision-makers inclined to split a consultation into two phases should be aware of the danger of such an argument being raised.
To view the judgment, please click here.