The court has recently considered the extent of disclosure required to satisfy the obligation of fairness in a consultation exercise in the case of R (on the application of Save our Surgery Limited) v Joint Committee of Primary Care Trusts (“JCPCT”) and Newcastle Upon Tyne Hospitals NHS Foundation Trust [2013] EWHC 439.

The Claimant, a shell company created for the purpose of this litigation drawing upon the support of local people, local MPs and clinicians, sought to quash the decision of the defendant, the JCPCT, to adopt an option for the future performance of paediatric cardiac surgery to be provided by specialist centres which excluded Leeds General Infirmary, but included the Freeman Hospital in Newcastle.

What main issues did this case raise?

The Claimant’s challenge was brought on two grounds:

  1. The Defendant’s failure to disclose sub-scores awarded by an Assessment Panel that reported to the JCPCT on the centres’ current performance in meeting standards and the robustness and achievability of the centres’ development plans for meeting standards.
  2. The Defendant’s failure to take into account the Assessment Panel’s sub-scores in relation to quality.

The Defendant in this case had a statutory duty to consult pursuant to s242(2)(b) National Health Service Act 2006. The law imposes obligations of fairness upon any consultation exercise, and the administrative court considered whether, in the facts of this case, that obligation had been complied with.

The Assessment Panel was comprised of experts in the relevant field who were each required to produce scores against a number of criteria and, following discussion, a consensus score was agreed against each factor for each specialist centre. Weightings were applied, then the total score for each specialist centre was calculated and provided to the JCPCT. During the process, a member of the JCPCT requested access to the sub-scores and it was agreed that the Assessment Panel should provide a summary report of their key findings from each centre, rather than providing the sub-scores so that the JCPCT would not seek to question the scores themselves and stray into areas in which they were not expert. A report was produced by the Assessment Panel setting out the total scores and a narrative of each centre’s compliance with the specified criteria. This was shared with the specialist centres and made public.

Leeds submitted a detailed response to the consultation which included a comment expressing dissatisfaction that the details of the Assessment Panel’s scores had not been shared with it. Another consultee, the JHOSC, requested the sub-scores and this request was not met. The JHOSC complained to the Secretary of State and an Independent Review Panel considered the complaint, and advised that it did not recommend a full review into the matters raised as the sub-scores were not material to the production of the consultation document, nor would they be material to the decision making process. It found that the JCPCT’s decision to release the sub-scores once it had made its final decision was a reasonable one. The Secretary of State accepted that advice.

In considering whether fairness requires the disclosure of the Assessment Panel’s sub-scores, the court considered that the scoring relating to quality had assumed an increased significance during the evaluation process; that the sub-scores had provided the basis of the consensus score which was ultimately used as a valuable tool in the assessing quality of the respective centres and was ultimately determinative of the difference as between Leeds and Newcastle. The court held that the disclosure of the sub-scores could have allowed requests for reassessment and reappraisal, and that the refusal of the JCPCT to a specific request by Leeds for disclosure was ill-judged. It was held that fairness did require disclosure of the sub-scores to enable Leeds to provide a properly focussed and meaningful response.

The court also held that the sub-scores were a material matter that should have been seen and considered by the JCPCT.

Did the judgment give guidance on how consultations such as this one should be conducted?

Within the Judgment, the court identified the following principles from previous case law which provides a useful checklist for those undertaking a consultation exercise:

  1. A court will not intervene unless a consultation process was “so unfair it was unlawful”;
  2. Consultation must be undertaken at a time when proposals are still at a formative stage;
  3. Consultation must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response;
  4. Adequate time must be given for the consultation;
  5. The product of the consultation must be conscientiously taken into account when the ultimate decision is taken;
  6. Disclosure of every submission or all of the advice received is not required. Save for the need for confidentiality, those who have a potential interest in the subject matter should be given the opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made. The degree of significance of the information is a material factor;
  7. The fact that the information in question comes from an independent expert or from the consultee is relevant to the issue of disclosure but it is a combination of factors including fairness, the crucial nature of the advice, the lack of good reason for non-disclosure and the impact upon consultees which are to be considered upon the issue of fairness;
  8. What fairness requires is dependent on the context of the decision; within that the court will accord weight and respect to the view of the decision-maker;
  9. If the person making the decision has access to information but chooses not to consider it, that of itself, does not justify non-disclosure;
  10. A consultation process which demonstrates a high degree of disclosure and transparency serves to underline the nature and importance of the exercise being carried out; thus non-disclosure, even in the context of such a process, can limit the ability of a consultee to make an intelligent response to something that is central to the appraisal process;
  11. The more intrusive the decision the more likely it is to attract a higher level of procedural fairness; and
  12. If fairness requires the release of information the court should be slow to allow administrative considerations to stand in the way of its release.

Is there a trend emerging in this area?

In this case, the court considered the matter under consideration to be of the highest importance to any child requiring paediatric cardiac surgical services and his or her family, and as such the decision warranted a higher level of procedural fairness. Time will tell if the courts interpret this case as an incremental step in requiring a greater degree of disclosure than before, or whether this case simply applies the principles derived from previous case law. What is certain is that each case will continue to turn upon its own facts and, the facts of each case will determine the extent of disclosure required.

What are the most important things for lawyers to note from this decision?

This case emphasized that in cases involving decisions of significant importance, careful consideration will have to be given to whether disclosure is required to enable the consultee to make an intelligent response. This is the case even in situations where the evidence is a matter of professional judgement. It is unclear as to what extent the request by Leeds for the sub-scores influenced the courts decision in this case, and whether the Judgement would have been different, had that request not been made. What is clear, is that when a request for disclosure is received, careful deliberation is required as to whether fairness requires that request to be complied with.