In the recent decision of R (on the application of Save our Surgery Ltd) v Joint Committee of Primary Care Trusts [2013] EWHC 439, the court quashed a decision of the Joint Committee of Primary Care Trusts (the "JCPCT") relating to the future performance of paediatric cardiac surgery due to an unfair consultation process and a failure by the JCPCT to take into account all relevant considerations.

Key Points

  • Public bodies are required to conduct consultations in a way that is fair to all consultees. Not doing so leads to a risk that any subsequent decision will be quashed, although this can only occur if the process was so unfair as to be unlawful.
  • It is not possible to state with certainty what procedural steps are required for a consultation to be fair as the requirements depend on the context. Helpfully, the High Court has set out nine principles relevant to ensuring that a fair consultation process is run.
  • A public body must take into account all relevant considerations when decision-making or risk the decision being quashed. Identifying such relevant considerations depends heavily on the context; this case shows that they can even extend to the evidence and methodology underlying an expert's report that was relied on by the public body in taking the decision.

Facts

The claimant, Save our Surgery Ltd ("Save our Surgery"), sought by way of judicial review proceedings to quash a decision by the JCPCT which identified seven specialist centres in England for the future performance of paediatric congenital cardiac services ("PCCS"). The JCPCT considered twelve options during the consultation process and decided that an option excluding the Leeds General Infirmary but including the Freeman Hospital in Newcastle would provide the best quality care.

The JCPCT reached this decision following a review of the provision of PCCS set up in 2008 by the NHS. This review included an Independent Assessment Panel, chaired by Sir Ian Kennedy, (the "Kennedy Panel"), whose role was to review and evaluate the existing providers of PCCS for compliance with proposed service standards, including by the use of consultations and a scoring system.

Standing of the claimant

The JCPCT submitted that the claim be dismissed due to the claimant's lack of sufficient interest in the matter, contrary to the requirements of Section 31(3) of the Senior Courts Act 1981 which provides that the court should not grant permission for a judicial review unless it considers that the applicant has a sufficient interest in the matter to which the application relates. The JCPCT argued that the claimant, a shell company created solely for the purposes of the litigation, took no part in the consultation process, was not involved in the provision of PCCS, was not itself affected by the JCPCT's decision and consequently did not have standing to bring the claim.

However, the court held that Save our Surgery did have sufficient interest, as it represented many individuals who had contributed financially to bring the proceedings and those who could have been directly affected by the JCPCT's decision. Incorporation was a "proper means" of allowing the interests of these persons to challenge the decision.

Grounds of Challenge

Save our Surgery argued that the consultation did not fulfil the requirements of fairness as set out in R (Coughlan and others) v North & East Devon Health Authority [1999] EWCA Civ 1871. It was argued that procedural unfairness resulted from a failure to disclose the sub-scores awarded by the Kennedy Panel to PCCS providers, including the Leeds General Infirmary, which, the claimant argued, deprived such PCCS providers of the opportunity to make intelligent and informed responses to the consultations carried out by the JCPCT. If the PCCS providers had been able to make such responses, which had then been taken into account by the JCPCT, they may have had a significant impact on the outcome of the consultation process and subsequent decision.

In addition, the claimant argued that the JCPCT should have had regard to the sub-scores awarded by the Kennedy Panel, as they were a relevant consideration. In not doing so, the JCPCT failed to sufficiently enquire into and take account of the supposed material differences in quality between the PCCS providers.

Judgment

The court found in favour of the claimant on both grounds. It held that (i) the sub-scores should have been disclosed to the PCCS providers and (ii) they were a material consideration that should have been taken into account by the JCPCT.

Upon reviewing the case law, the court identified the following nine principles when considering a challenge to a consultation process:

  • The key issue for the court is whether the consultation process was "so unfair it was unlawful" (perDevon County Council v Secretary of State for Communities and Local Government [2010] EWHC 1456 (Admin)).
  • To be lawful, a consultation must (i) be undertaken whilst proposals are still at a formative stage; (ii) include sufficient reasons for proposals; (iii) allow adequate time for response; and (iv) be conscientiously taken into account by the decision-maker.
  • Consultees should be given an opportunity to address adverse information that is credible, relevant and significant to the decision.
  • The source of such adverse information is a, but not the only, factor relevant to fairness of non-disclosure.
  • The requirements of fairness depend on the context of the decision, regarding which the court will take account of the decision-maker's view.
  • The lawfulness of not disclosing information depends on the reason for non-disclosure; non-consideration by the decision maker does not itself justify non-disclosure to the consultees.
  • Non-disclosure, even in the context of an otherwise highly transparent consultation process, can limit a consultee's ability to respond intelligently to a central aspect of an appraisal process.
  • More intrusive decisions generally require a higher level of procedural fairness.
  • The court should be slow to allow administrative considerations to prevent the release of information when fairness requires it.

The court concluded that fairness required disclosure of the sub-scores to the consultees as they, indirectly through their use by the Kennedy Panel, were ultimately very important to the decision-making process. The fact that the subject matter of the consultation process, namely the provision of PCCS, is of the "highest importance" to any child requiring such care and his family was relevant to the determination of what constitutes a fair consultation.

The court also held that the JCPCT did have a duty to consider the sub-scores. Their indirect significance to the JCPCT's decision meant that it was not appropriate for the JCPCT to "leave them to the experts"; they were a material consideration that the JCPCT was bound to consider.

Comment

The judgment in R (on the application of Save our Surgery Ltd) v Joint Committee of Primary Care Trusts emphasises the importance of public bodies conducting consultations in a way that is truly transparent and fair, especially when the subject matter of the consultation is of high public importance. As this judgment demonstrates, the requirements of fairness are highly dependent on context. In this case, the court acknowledged that the JCPCT ran a comprehensive consultation and that "thought and care" was given to the design, content and implementation of the process, with the individuals involved aiming to provide a consultation that was "informed, detailed and transparent". However, these intentions and considerations did not prevent the court from quashing the decision for want of fairness.

In particular, decision-makers must be cautious when seeking to rely on an expert's report or recommendation without considering the underlying evidence and methodology. The court may find that this underlying data is a relevant consideration that the decision-maker must take into account. Although deferring to an expert's view may be appropriate in some cases, decision-makers should be careful to properly scrutinise such data when the conclusion that it supports is highly significant to the decision to be taken.

The judgment is also noteworthy because it demonstrates the potentially high level of disclosure necessary for a public body to conduct a fair consultation. Public bodies may be obliged to disclose information that they did not rely on and which was not a relevant consideration for them when reaching their decision, where disclosure is necessary for consultees to provide properly focussed and meaningful responses.