Morris, R (on the application of) v Trafford Healthcare NHS Trust [2006] EWHC 2334 (Admin)

[2006] EWHC 2334 (Admin)Case No CO/3655/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/09/2006
Before
MR JUSTICE HODGE
Between
THE QUEEN on the application of PAT MORRIS (on behalf of Health in Trafford)ClaimantTRAFFORD HEALTHCARE NHS TRUSTDefendant
Anthony Eyers (instructed by Claimant Solicitor unclear) for ClaimantParishil Patel (instructed by Hill Dickinson) for DefendantHearing Hearing date: 11 September 2006
JudgmentMr Justice Hodge :
[1]Altrincham General Hospital was established in the 1870’s. It has 3 inpatient wards located in the original 1870 building. The hospital offers a range of services to the local community including a nurse-led minor injuries unit, inpatient rehabilitation services, outpatient services, phlebotomy, x-ray and allied health services. The hospital is managed by Trafford Healthcare NHS Trust, the defendant, which is also responsible for 2 other hospitals in the area including Trafford General Hospital.[2]On 7th March 2006 the Trust Board of the defendant resolved that “the Trust would cease to admit patients to inpatient beds at (Altrincham General Hospital) with immediate effect”.[3]The claimant is a qualified Registered Nurse. She has lived in Trafford since 1986, is involved in the local community and has worked for a period as a staff nurse at Altrincham General Hospital (AGH). She is a former member of the Patient and Public Involvement in Health Forum (PPIF) and continues to work closely with this group. She brings these proceedings on behalf of an organisation called Health in Trafford.[4]At the time of the decision on 7th March 2006, there were 2 inpatient wards open at AGH. There was no public consultation about that closure. The claimant says this was unlawful. She asks the Court to quash the decision and to order the defendant to reopen the 2 wards. The defendant accepts the wards were closed without public consultation. However it says the decision was taken urgently on the grounds of clinical safety. The decision has been implemented, further consultation on healthcare services in Altrincham is promised, and in the circumstances it would be wrong of the Court to order the reopening of the 2 wards.

Legislation

[5]The Health and Social Care Act 2001 makes provision for public involvement and consultation by healthcare bodies in relation to proposals or plans that may be under consideration. “11(1) It is the duty of every body to which this section applies to make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on –(a) the planning of the provision of those services,(b) the development and consideration of proposals for changes in the way those services are provided, and(c) decisions to be made by that body affecting the operation of those services. (2) This section applies to (a) Health Authorities (b) Primary Care Trusts and (c) NHS Trusts (3) For the purposes of this section a body is responsible for health services (a) If the body provides or is to provide those services to individuals, or (b) If another person provides or is to provide those services to individuals (i) at that body’s direction (ii) on its behalf, or (iii) in accordance with an agreement or arrangement made by that body with that other person; (iv) and references in this section to the provision of services include references to the provision of services jointly with another person”. It is accepted in this case that the closure of the wards at AGH and the proposals leading to it constitute “changes in the way … services are provided”. (a) the planning of the provision of those services, (b) the development and consideration of proposals for changes in the way those services are provided, and (c) decisions to be made by that body affecting the operation of those services. (a) Health Authorities (b) Primary Care Trusts and (c) NHS Trusts (a) If the body provides or is to provide those services to individuals, or (b) If another person provides or is to provide those services to individuals (i) at that body’s direction (ii) on its behalf, or (iii) in accordance with an agreement or arrangement made by that body with that other person; (iv) and references in this section to the provision of services include references to the provision of services jointly with another person”. Guidance[6]Within the papers are extracts from 3 sets of guidance on the consultation process within the National Health Service.[7]In February 2003 the Department of Health issued a paper entitled Strengthening Accountability Involving Patients and the Public. This is described as policy guidance to section 11 of the Health and Social Care Act 2001. At page 1 in the introduction the document says:
“Involving and consulting has a particular meaning in the context of section 11. It means discussing with patients and the public their ideas, your plans, their experiences, why services need to change, what they want from services, how to make the best use of resources and so on. It is more about changing attitudes within the NHS and the way the NHS works than laying down rules for procedures. What is important is that involvement and consultation is adequate, both in terms of time and content and appropriate to the scale of the issue being considered.”
[8]Bodies such as the defendant are recommended to carry out a baseline assessment of current work and arrangements to involve and consult patients and the public. They are to develop a strategy for involving patients and the public. They are to make sure there is a planning process for patient and public involvement.[9]Under the chapter entitled “a new planning process”, the guidance says:
“The NHS needs to understand and be connected with local people by asking what they want and need. Information about current services and the problems they face need to be shared openly so people can get involved in a meaningful discussion… All stakeholders need to feel that they have had the opportunity to influence the debate at important stages, and that they have been kept properly informed throughout.”
[10]Exhibited to the claimant’s affidavit are extracts from a publication by the Centre for Public Scrutiny entitled Local Authority Health Overview and Scrutiny Committees and Patient and Public Involvement Forums … Working Together, Practical Guide. It describes the context of patient and public involvement in health and says at page 4 that involvement of communities, patients and the public includes: “A commitment on the NHS to ensure that patients and the public are involved at all stages of the planning and delivery of services (Health and Social Care Act 2001)”.[11]There is also a Department of Health document from July 2003 entitled Overview and Scrutiny of Health – Guidance. This reinforces the crucial role that the consultation process is expected to play within the Health Service. The duties are summarised at section 10 of the Department of Health Report:
“10.1.1 Each local NHS body has a duty to consult the local Overview and Scrutiny committees on any proposals it may have under consideration for any substantial development of the Health Service in the area of the committee’s local authorities or on any proposals to make any substantial variation in the provision of those services. This is additional to the discussions that NHS bodies will have with the local authority …. The duty to consult the Overview and Scrutiny Committee is also additional to the duty placed on NHS bodies to consult and involve patients and the public as an ongoing process under section 11 of the Act. 10.1.2 The NHS body will need to discuss any proposals for service change with the Overview and Scrutiny Committee at an early stage, in order to agree whether or not the proposal is considered substantial … 10.1.3 Whilst there is a statutory duty for NHS bodies to consult the local Overview and Scrutiny Committee on a substantial change, committees should also note the duty to ‘consult and involve’ patients and the public conferred on NHS organisations by section 11 of the Act … Section 11 makes it clear to NHS organisations that solely focusing consultation with the Committee would not constitute good practice.”
[12]Section 7 of the 2001 Act creates the duty on health bodies to consult the local Overview and Scrutiny Committee in relation to “substantial changes”. But section 11 of the Act, the duty relied on here, does not limit the consultation duty to “substantial change”.[13]There are potential exemptions from the duty to consult referred to in the guidance. “10.1.6 Another exemption is that local NHS bodies do not have to consult the Committee if they believe that a decision has to be taken on an issue immediately because of a risk to the safety or welfare of patients or staff. For example if a ward within a hospital needs to be closed immediately due to a viral outbreak. This might be considered to be a substantial development but allowing time for consultation could place patients or staff at risk. These circumstances should be exceptional. In any such case, the local NHS body must notify the Committee immediately of the decision taken and the reason why no consultation has taken place…”. The guidance here refers to the duty to consult the local Overview and Scrutiny Committee. There is nothing to suggest that the exemption is not available in relation to the wider duty to consult under section 11.[14]There are within the 2001 Act very clear consultation duties imposed on organisation such as the defendant. The various guidance produced makes it clear that these duties are not peripheral but may be regarded as central to the role of health bodies. They provide, in my judgment, an important context for this case.

The Claimant’s Case

[15]There is clearly considerable local concern in Altrincham about the future of AGH. The evidence shows that the hospital has been under threat of closure in whole or in part, and possibly of redevelopment over a number of years. The defendant currently has a significant financial deficit. The closure of wards at AGH may assist in reducing that deficit. The claimant believes the decision taken in this case was driven by financial considerations, not as the defendant says clinical safety issues. Indeed while this is not pleaded, in argument, counsel suggested that the defendant was acting in bad faith when closing the wards at Altrincham General Hospital. That of course is strongly denied by the defendants.[16]From the claimant’s perspective, the more recent history in relation to AGH starts in 1999. In that year there was a proposal to close 2 wards at AGH. There were concerns expressed at the time about the lack of consultation over these proposals. There are some papers in the bundles before the Court which point in that direction. One ward was eventually closed. I have not been referred to such evidence as there may be about whether there was proper consultation about that closure. It is, however, the clear view of the claimant that there was no consultation, and from her perspective and perhaps that of those she represents, this is a significant background. The future of healthcare services in Trafford has most recently been under consideration since 2004. A project was started in that year “Investing in Trafford’s Community Hospitals” (ITCH). A “pre-consultation” process was carried out. This appears not to have been intended as a consultation within the statutory framework. “Care closer to home” was a major concern. At page 22 of the report it was said:
“Of all the areas of care currently provided at the community hospitals, the provision of future inpatient services at Altrincham is perhaps most contentious.”
[17]There were various proposals as to how this ITCH project might be taken forward including elements of public consultation. The project however was not taken forward and was replaced in the summer of 2005 by a new project called “Best for Health in Trafford”. In particular the aim was to look at all the future services, not just those of Altrincham General Hospital. The claimant says that ward closures were highlighted as an issue in the ITCH project. There was to be consultation about those. Since Best for Health in Trafford took the place of the ITCH project, there has been no public consultation on the closing of wards at Altrincham General Hospital.[18]In November 2005 a public interest report on the financial position of the defendant Trust was published by the Audit Commission. It appeared that the Trust was unlikely without significant financial support to achieve its break even duty by 31st March 2007. The report concluded that “the Board needs to take immediate action to improve the Trust’s financial position”. It appears the Trust deficit is in the order of £12.5 million.[19]The Trust Board considered this report at a meeting on 5th November 2005. They indicated a public meeting must be held within the next 4 months to explain the actions to be taken by the Trust in response to the report. There was a report from a Dr Musgrave that experienced staff grade doctors had left Altrincham General Hospital and he expressed the view that care would be safer if it was provided at Trafford General Hospital. The then Chief Executive of the defendant prepared a special team brief on 16th November 2005. This referred to the possible closure of Altrincham General Hospital, it being too big for the needs of the Trust. A number of other matters were referred to but the Chief Executive said “these proposals remain proposals … We intend over the course of the next few weeks and months to engage with a wide range of stakeholders in order to prepare more detailed proposals and enable us to the public interest report, while at the same time providing a high quality local care to the residents of Trafford and beyond. The proposals will contribute to the wider review of health services in Trafford. This work which will start next week will review the results of (various previous projects) … This piece of work will conclude in January and it is then anticipated that there will be public consultation.”[20]The claimant regards it as significant that at the time Dr Musgrave was expressing concerns about the medical care at Altrincham General Hospital, the Trust had been required to self-certify its compliance with healthcare standards to the Healthcare Commission. It had in respect of all the issues involving the protection of patients certified itself as compliant on 28th October 2005.[21]On 22 November 2005, Martin Wakely, a Senior Executive with the Defendant, had an informal meeting with staff at Altrincham General Hospital. He told them that all the doctors involved with AGH agreed the hospital was not suitable for elderly care as there was inadequate medical cover. He said that before any proposal to close the ward took place there would have to be public consultation which would take another 3 months.[22]In the meantime, a Professor Robert Tinston was appointed by the Strategic Health Authority to undertake an urgent review of the position of the Trust. As he said in his report “the Trust faced a current year deficit of £3.5 million and historic debts of over £9 million”. His terms of reference included taking views of NHS bodies / properties and to consult informally with patients and political and other relevant stakeholders across Trafford, including the Patient and Public Involvement Forums (PPIF’s). He was to:
“Produce a report clearly indicating degrees of support, options for further consideration and decision; and recommendations for the way forward. This report will be used for further discussions by the SHA with the Trafford and GM NHS as a precursor to public consultation to be undertaken by Trafford PCT’s in spring 2006.”
[23]As part of his report Professor Tinston recommended the retention of Altrincham General Hospital for healthcare purposes. He proposed disposing of part of the site and retaining the listed part of the buildings. The completely refurbished facility would, he said, be fit for the 21st century and a significant local building. In relation to the wards, he said:
“To move on to the inpatient facilities, clinicians told me and it is now a matter of public record – that these can no longer be regarded as an appropriate NHS acute service because there are no resident medical staff which presents clinical safety issues. There are also environmental inadequacies, although there was high praise for the current staff. In addition, those patients actually requiring acute NHS care be more appropriately cared for at Trafford General Hospital because of the presence of a wide range of clinical expertise and facilities. As this advice has been given I believe that the NHS authorities are now at risk in the event of an untoward clinical incident. This is therefore a matter for urgent consideration and I recommend the cessation of inpatient services at Altrincham General Hospital as soon as possible. If we compare the average length of stay at Altrincham General Hospital, which at 28.2 days with those in medicine at Trafford General which are 7.1 days and the fact that only 242 patients were admitted to Altrincham General in the year 2004/2005, then even allowing for a 50% increase at the March end less than 5 bids would be indicated for Trafford Hospital. I believe therefore that this service can be reprovided with minimal impact especially as not all AGH patients require the environment of an acute hospital and would be more appropriately cared for in a non-acute, non NHS environment.”
[24]In his summary of recommendations he opted for closing the inpatient beds at AGH and developing the site for greater possibilities in outpatients, minor injuries, diagnostics etc.[25]The claimant is heavily critical of the report of Professor Tinston. Most importantly, in relation to Altrincham General Hospital, she says he applied his mind to the wrong test. The yardstick he used was that the ward facilities there could no longer be regarded as appropriate for NHS acute services. However the care at AGH was never supposed to be for acute services. The patients were there for post-operative rehabilitation. Accordingly, she says, Professor Tinston’s report was flawed.[26]Professor Tinston, at various stages of his report, recognises that there is a need for public consultation in relation to various proposals. He will have been aware that the issue of the closure of wards at Altrincham General Hospital was a significant concern to the community in Altrincham. At no stage does he make any reference to the need for consultation in relation to his recommendation for the closure of the wards at AGH.[27]At a Trust Board meeting of the defendant held on 10th January 2006, it had been reported that Professor Tinston would bring the Chief Executives of the Acute Trusts and the Primary Care Trusts together to share the contents of his report. “The report will go on to form the basis of public consultation from April 2006”. At that meeting, the claimant who was present sought reassurance that there would be no significant change at Altrincham General Hospital without public consultation. Mr Cain provided this reassurance, but advised that it is the Trafford PCT’s that are responsible for public consultation. Mr Cain pointed out that the trust is soon to present the Trust’s financial plan to the Greater Manchester’s Strategic Health Authority, and this may influence the decision making process. When clarification was requested of the timescales for public consultation, Mr Cain indicated that the date he had been given by the SHA was April 2006 for the start of the public consultation.[28]The Tinston report was referred to the Healthcare Governance Committee of the defendant at a meeting on 16 February 2006. The Committee was told that the report recommended that inpatient services at Altrincham General Hospital should cease as soon as possible due to patient safety issues. Dr Anandadas, Clinical Director for Care of the Elderly for the Trust was present at the meeting. He said that the average age of admission at AGH had increased over the past decade and is currently 84 years. “This means that the majority of patients admitted to Altrincham will have existing medical needs requiring medical review, assessment and intervention. Currently, this level of medical care is not on site and despite excellent nursing care for these patients, the level of medical care is not safe”. Public consultation is not mentioned. The Healthcare Governance Committee agreed a draft statement for submission to the Trust Board of the defendant in March 2006.[29]The Medical Director of the Trust, Dr Campbell, produced a paper for the Trust Board which was held on 7 March. It was before the Trust Board on that date and is reproduced in the main in the approved minutes. Under the heading “Inpatient Beds at Altrincham General Hospital”, the Deputy Medical Director reported that the situation at AGH had become more urgent as consultant physicians were unable to sustain cover that they had been providing. He referred to the report of Professor Tinston and quoted as follows from Dr Campbell’s report:
“-There has been an increasing change to the status of patients transferred to Altrincham General Hospital (AGH). In the past, patients were transferred to AGH for rehabilitation purposes, over time the status of patient has changed and now includes patients who are medically unstable and more unwell. On several occasions over recent months patients have required transfer back to Trafford General Hospital as their condition has deteriorated. This has been an increasing concern to the responsible consultant. -Trafford’s consultant physicians are concerned that it is no longer safe to have inpatients at Altrincham General Hospital because it is not possible to provide 24 hour resident cover at Altrincham General Hospital by a doctor on site. Training Grade doctors cannot work at AGH as they cannot work unsupervised. The consultant physicians are providing on call cover but this cannot be maintained. -The nurses who provide excellent care under very difficult and antiquated physical conditions at Altrincham General Hospital, expect to work with the direct supervision by the medical staff. -It is recommended to the Trust Board that, with immediate effect, no further patients be admitted to Altrincham General Hospital. Arrangements will quickly follow to develop individual care plans for the 19 inpatients currently in Altrincham General Hospital to ensure their successful rehabilitation or further care at an appropriate unit.”
[30]The minutes continue:
“Dr Anandadas, consultant physician and Clinical Director Elderly Health, reported that the Resident Medical Officer left the trust last year and despite vigorous efforts the Trust has been unable to recruit to the post. He also advised that training grade doctors were unable to work at AGH as it is a requirement of the Royal Colleges to work under the supervision of a consultant. Dr Anandadas also reported that the average age of patients admitted to AGH has increased from 70 years twenty years ago to 84 years. In the past patients have been more disabled than medically ill, however currently, patients are more unwell (although medically stable when transferred to AGH due to their increased age. The Chair asked Mrs Smith, Acting Director of Nursing Services to confirm any proposed operation arrangements. Mrs Smith reported that should the Board decide to close AGH to admission, patients who are currently inpatients would remain at AGH until either their rehabilitation is complete or they are discharged home. In relation to information to be given to patients and relatives, Mrs Smith noted that individual letters would be available for patients and their relatives noting the Board’s decision and arrangements for their continued care until discharge. She also reported that the Matron, the Divisional General Manager for Medicine and herself would be available at AGH to support patients and relatives. Regarding staff, Mr Wakely advised that about 60 staff would be directly affected, approximately 32 nursing staff and 25 facility staff. He reported that members of the executive team and senior management team would be meeting with staff to agree a process to accommodate the requirements of staff. The Chair of the Trust Board allowed members of the public present to ask questions. The questions related among other matters to the way in which the illness of patients had changed, what might happen to the staff, what proportion of AGH was to be sold, and what might happen when the inpatient beds had closed. They were told there were plans to increase outpatient clinics and the Minor Injuries Unit at AGH. There were further plans currently being formulated they were told prior to the full public consultation in June 2006. When asked what public consultations had been undertaken, the Chief Executive David Cain reported that with regards the decision about admission to inpatient beds this decision would be taken based on the grounds of public safety, therefore the Trust had been unable to undertake a detailed consultation process. David Cain confirmed that the investment and redevelopment of AGH would be subject to full public consultation’. ”
[31]The minutes show that the Chief Executive advised the Board that the decision “should be taken on the basis of patient safety and as such this had precluded the Board from undertaking a detailed and lengthy public consultation process with regard to the withdrawal of inpatient beds, and this was in accordance with the Trust’s duty under section 11 of the Health and Social Care Act 2001”. There was a unanimous vote for the immediate closure to admissions to inpatient beds at AGH and the Trust resolved to cease to admit patients with immediate effect.[32]Although the minutes of the Board indicated that the closure might not be completed until June 2006, in fact no new inpatients were taken into AGH and the wards closed on 31st March 2006, the current patients having either returned home or been transferred to Trafford General Hospital.[33]The claimant in effect takes issue with the position put to the Trust Board in March 2006 by Dr Anandadas. In a letter written by that doctor as Clinical Director for Care of the Elderly on 21st/23rd July 2004, he said that when elderly patients become medically or surgically disabled and it is felt that such patients may benefit from rehabilitation, they would be transferred to the Seymour Unit (in Trafford General Hospital) or Altrincham General Hospital . On 13th July 2005, Dr Anandadas wrote a letter to colleagues entitled “safe discharge and rehabilitative discharge”. He said “In this day and age the total length of stay of any patient in a rehabilitation unit should not exceed 21 days. This includes rehabilitation, home visit and discharge… There are only 9 patients in Seymour Unit awaiting package of care or placement in rest or nursing homes, and a slightly lower proportion at Altrincham General Hospital… Those patients who have the Potential for Rehabilitation in the Community (PRC) should be identified and every attempt should be made to discharge them from the time they are safe to be discharged”.[34]It is the claimant’s case, with which I agree, that these letters and indeed the comments in the unapproved minutes by Dr Anandadas show that the beds at AGH were being used for rehabilitative and not acute care. But the reason for closure of inpatient beds at AGH put forward by Professor Tinston was that AGH was no longer an appropriate NHS acute service.[35]The claimant believed the decision by the Trust Board was flawed. She thought it driven by financial considerations rather than clinical safety issues. There had been no public consultation as required under section 11. The Secretary of Health in Trafford wrote a pre-action protocol letter to the Chief Executive of the defendant on 16th March 2006. He said at 5.4:
“5.4.1 As you know we consider (the decision) to be flawed. In brief summary our position is that such reasoning should be open to public consultation as required under your statutory duty by section 11 Health and Social Care Act 2001. Furthermore, medical concerns about patient safety were raised at the Board in November, but the Trust did not include any of these concerns in their risk management strategies and plans. Allowing an issue to become urgent is not grounds for avoiding consultation, and that ‘so called safety fears’ were raised in November. 5.4.2 Our case is not concerned with the merits of the decision to order closure. Our case is concerned with the procedure by which the decision to close was reached.”
[36]The Trust solicitors’ response to the pre-action protocol letter was written on 29th March. An earlier letter from the Trust responding to the claim appears to have been wrongly posted and was not received by the defendants for some time thereafter. These proceedings were in fact issued on 24th April 2006 at which time the wards had already been closed.

Defendant’s Case

[37]In its summary grounds for opposing the claim for judicial review, the defendant notes that the claimant says the closure decision was taken as a result of financial pressures, closure was not urgent and it was in breach of the statutory duty to consult. The defendant continues to contend that the application is without merit. The decision to close the inpatient services at AGH had been implemented by 30th March 2006, 4 patients had been transferred to Trafford General Hospital, and the remaining patients had been discharged.[38]The defendant says that the decision reached by the Trust on 7th March was appropriate. It relied on the report of Professor Tinston as summarised above. It referred to the report of Dr Campbell which is substantially reproduced in the minutes of the meeting of 7th March.[39]In particular, reliance was placed on the fact that in the months before the decision a number of patients had been transferred to Trafford General Hospital from AGH as their condition had deteriorated. There was evidence that there were no staff grade doctors available to provide cover at AGH. That had been the case since the autumn of 2005. There had been advertisements but no successful recruitment. The consultants who had originally attended 1 day a week were providing cover. The staff grade doctors who should have been at AGH 5 afternoons a week were it seems not present. It was not possible to provide training grade doctors to assist. There had therefore been no supervision on site since November 2005.[40]It is the defendant’s position that, by 7th March 2006 as a result of the duty of care owed to both patients and staff, and the fact that concerns had been highlighted by Professor Tinston, by the other staff at Trafford Healthcare Trust and by the consultant in charge, it was reasonable to close the wards as a matter of urgency.[41]As to the staff grade doctors, the evidence is one had left in November 2003 and the other had left in November 2005. There had been 3 separate attempts to replace these doctors but no applications had been received or accepted. In the pre-action protocol response it was said “the Trust consultant physicians were concerned that it was no longer appropriate to have inpatients at AGH as it was not possible to provide 24 hour resident medical staff cover by a doctor on site”.[42]Further, after the recommendations had been received from the Trust’s Healthcare Governance Committee, on 1st March the local MP’s, the leader of the local council, the Chair of the Community Services and Social Care Committee, the Chair of the pivotal Overview and Scrutiny Committee and the senior executives of the Trafford Metropolitan Borough Council had all been written to about the closure proposal.[43]The defendant denies the allegation that financial considerations were the main reason for the decision. In particular, it denies any allegations of bad faith. Such an allegation was, it is said, implied by the claimant in its claim, and indeed explicitly made in the hearing before the Court. The defendant points out that if such allegations are made they must be supported by clear evidence. There is no such evidence and indeed none was made in any pre-action correspondence.[44]It rejects the failure to consult contrary to its duty under section 11 of the 2001 Act. It regards the challenge as unsustainable. The defendant again says it took an urgent decision to close the wards because they were not clinically safe. They informed various stakeholders of the proposal and hearing from the public at the meeting on 7th March was adequate and appropriate and discharged the duty under section 11. Further it reiterated its intention at the time to undertake a full and detailed public consultation.[45]It is clear that, prior to the judicial review proceedings, the defendant had long recognised there were very significant public concerns about the closure of the wards at Altrincham General Hospital. In consequence it seems that on 17th July 2006, an extraordinary Board meeting of the defendant took place to review the decision of the Board of 7th March. A substantial number of concerned groups and persons were present at that meeting. In particular there were a number of representatives from the Trafford South Patient and Public Involvement Forum, one of whom was the claimant. The Forum indicated to the meeting that it had not been consulted about the decision to close the beds at AGH. They wanted to know how the situation had deteriorated so rapidly as to justify the need for immediate action. They were critical among other matters of the acceptance of Professor Tinston’s views.[46]The Board and those present on 17th July heard a presentation from Mr Martin Wakely on behalf of the Trust. He said among other matters that the 2 staff grade posts had been vacant during the past 2 years and had not been replaced. Since November 2005, treatment was provided by more junior doctors who required supervision by consultant staff. He said the consultants had told the management in December 2005 that unless replacement staff grade doctors could be found that the Service was not sustainable in its current form. He relied on Professor Tinston’s report. He said the consultant body had considered that the services at AGH were not sustainable and were potentially medically unsafe. Discussions had taken place with local politicians before the decision was taken on 7th March.[47]He confirmed there were 26 beds in 2 ageing nightingale wards at AGH. He said medical support was provided by 2 consultants visiting once a week, 2 staff grade doctors attending Monday to Friday afternoons only, and out of hours weekend cover was provided by local GP’s. He said that AGH does not have 24/7 access to emergency support services that patients require if they become acutely ill. Over the past few months 2 – 3 patients a week had had to be transferred back to Trafford General to receive intensive medical support. He further said that rehabilitation often requires that patients continue to receive medical input whilst also receiving nursing care and therapy. Trafford General has a purpose built rehabilitation unit with full 24/7 access to all emergency clinical and support services. This full range of services was not available to patients at AGH. The meeting was told that the future of AGH would be included in a full public consultation due to commence in September. The meeting had discussion and questions. A resolution was passed by the Board that the decision on 7th March was correct.[48]It is further said that a Fire Risk Assessment and Compliance Audit conducted in June 2006 shows that the wards at the hospital are not properly safe. Hence the defendant says the original decision was right. There has been a public response to concerns about the closure. The decision has been looked at again and reconfirmed after full public consultation. In any event there are further problems in relation to fire precautions which make reopening the wards not viable.[49]It seems that these decisions have not satisfied the concerns of some in the Altrincham area. A further witness statement has been filed by the Chair of the defendant Trust. It indicates that had been envisaged in July 2006 that there would be a full public consultation on the future development of health services in Trafford to start in September. But in view of a number of matters including various other consultations and publications, Trafford Healthcare NHS Trust and the Trafford Primary Care Trusts had decided that a public consultation in respect of health service in Trafford would not take place in September as anticipated.[50]However in her affidavit the Chair of the Trust says “the Trust remains committed to undertaking a full public consultation in respect of the closure of the inpatient wards at Altrincham General Hospital as set out in a letter to the claimant of 27th July 2006”. It goes on to say that the Trust will hold 4 public meetings on the closure of the wards in September and October. It also said “the Trust recognises that it must approach the consultation with an open mind to those issues which have to date necessitated the closure of the wards and prevented the Trust from reopening them”.[51]In the hearing before this Court, the defendant indicated that as part of the public consultation it was prepared to give an undertaking that one option to be considered within the public consultation would be the reopening of the wards. In other words, if a case was made and accepted that the right way forward was the reopening of the wards at Altrincham General Hospital that would happen.

Conclusions

[52]I do not accept that the defendant by its officers or members has acted in bad faith in relation to the decisions it has made concerning the closure of the wards at Altrincham General Hospital. As Mr Patel rightly said, this allegation has never been particularised and it should have been. I do not accept that a necessary inference from the decision making process is that the defendant made a decision on financial grounds as opposed to clinical safety grounds at the meeting on 7th March.[53]It is clear that the defendant is in a difficult financial position. This had been highlighted in the report of the Audit Commission in November 2005. Professor Tinston refers to it in his report. The Financial Recovery Report before the Committee acknowledged that the transfer of inpatient services from Altrincham General Hospital would have an impact on the financial recovery. I do not accept however that the evidence shows that the financial position of the Trust infected the decision to close the beds at AGH. Neither the minutes nor the papers which appear to have been before the Board suggest that any relationship was made between the two issues.[54]The claimant says the decision was taken in breach of the statutory duty to consult and was not urgent. It is noted that the Trust wrote to a number of stakeholders on 1st March prior to the decision on 7th March. There is a statutory duty to consult Overview and Scrutiny Committees. I was not referred to any evidence other than that a letter was written on 1st March to indicate that consultation with the relevant Overview and Scrutiny Committee was carried out in any sense which appears to comply with the suggestions made in the practical guide published by the Centre for Public Scrutiny referred to above. It is equally clear that no effort was made at all to consult with the Patient and Public Involvement Forums locally to Trafford. The Department of Health Guidance sees them as key in any consultation process. The PPIF were involved in July 2006 and were clearly available for consultation in the spring of the year. The Practical Guide suggests that the OSC’s and the PPIF’s should work closely together.[55]It is also clear that the defendant was aware of the duty to consult on such issues as the closure of the wards at AGH. It is referred to regularly in the documentation that is before the Court and summarised above. From 2005 onwards is has been recognised that public consultation is necessary. The Trust were, I am satisfied, aware that the closure of wards in Altrincham General Hospital was one of the most contentious proposals locally in relation to the future of the health service provision in Trafford. The hospital had been under some threat since at least 1999. The evidence points to significant disquiet among the local population about any such closure. The Trust had proposals to consult in November 2005, in January 2006, in the spring of 2006 and indeed in September 2006. The consultation envisaged in general was expected to last over a period of 12 weeks. No such consultation has happened. However I am satisfied the issue the duty to consult was acknowledged before 7th March 2006 but it has not happened.[56]In the DOH Guidance Strengthening Accountability Involving Patients and the Public referred to above, it is said in the executive summary:
“the overall aim of section 11 is to make sure patients and the public are involved and consulted from the very beginning of any process to develop health services or change how they operate. This will lead to patient-centred care and improvement in the patients’ experience.”
In the introduction it is said:
“Involving and consulting has a particular meaning in the context of section 11. It means discussing with patients and the public their ideas, your plans, their experiences why services need to change, what they want from services, how to make the best use of resources and so on.”
[57]I was not referred to any documentation suggesting that a strategy had been developed for involving patients and the public in relation to communications as suggested in February 2003 in Strengthening Accountability. If there was such a strategy in place, it does not appear to have been recognised, followed or referred to over the time when the closure of the wards occurred.[58]The Court acknowledges that as the Strengthening Accountability says:
“what is important is that involvement and consultation is adequate both in terms of time and content and appropriate to scale of the issue being considered”
. Here there appears to have been no or virtually no consultation with the public in its wider sense and certainly not with the PPIF. The closure of wards at Altrincham General Hospital was, I am satisfied, recognised as being very contentious. It appears there had been pressure for closure for a significant period before 7th March. The Trust through its officers was well aware of that. There was, in my judgment, adequate time prior to 7th March to conduct public consultation in compliance with the section 11 duty, even in the context of the claimed urgency of the situation.[59]The claimant says the decision was not in fact urgent. The staff shortages had been known about for a considerable period. There had only been 1 doctor staff grade available since the autumn of 2003. The 2nd doctor left in November 2005. There had always been GP cover in the evenings. That remained the position. Consultants only were providing cover after the staff grade doctor left. It appears there were some trainee doctors working but it is accepted that they were not able to be properly supervised by the consultants.[60]I accept the evidence that the wards at AGH were for rehabilitative care. They were not expected to be used for patients needing acute care. Professor Tinston was misinformed as to the function of the wards. His recommendation the wards should be closed was based on a misunderstanding that they were being used for acute cases. That was never what they were intended for.[61]I accept that the consultants were concerned about workload and about the apparent practice of referring patients who fall outside the rehabilitative group to AGH. But there is a duty on the Trust to consult. The position could have been stabilised by properly restricting the patients referred from Trafford General Hospital to Altrincham General Hospital to those for whom services could be provided. The difficulty of providing medical cover was real but had been present for some months before 7th March 2006. The position could have been contained in my judgment while a short period was allowed so that proper consultation over the closure could take place.[62]The section 11 duty to consult is of high importance. The public expect to be involved in decisions by healthcare bodies, particularly when the issues involved are contentious as they clearly were with AGH. I do not accept that the need to close the wards at Altrincham General Hospital was so urgent that it was right that no public consultation should take place. There ought to have been consultation under section 11 about the closure of the wards in so important a local provision as Altrincham General Hospital. In those circumstances I regard the decision to close the wards as unlawful and will quash it.[63]However the claimant seeks more than a quashing order. She wants the Court to order the immediate reopening of the wards. It is not right in my judgment to make such an order. The wards have been closed since the end of March 2006. The defendant has in terms accepted that it is right to hold a full public consultation about the closure of the wards at AGH. It is clear that this consultation can take place very shortly. Indeed at one stage it was to happen in September.[64]Counsel for the defendant indicated that if necessary an undertaking will be given to carry out this consultation. He also acknowledged that the consultation will and must include as part of its terms of reference the possibility, that following the consultation, the wards will be reopened. Whatever decision is made after the public consultation will be a matter for the decision of the defendant Trust. It will have to weigh up the views of all who participate in the consultation before reaching any decision. It is a possibility that, having conducted a proper consultation, the Trust reaches a conclusion which the claimant will not welcome, that it would be wrong to reopen the wards. It cannot be right for this Court in its discretion to order the reopening of the wards on the basis that there will be a public consultation which might legitimately then decide to close them again.[65]The application for judicial review is therefore granted. The decision of the defendant Trust Board to close the inpatient wards at Altrincham General Hospital is quashed. The application by the claimant for a mandatory order requiring the defendant to reopen those wards is refused. It would be wrong to make such an order in the light of the assurances given to the Court by the defendant that there is, very shortly, to be a public consultation which may lead to the reopening of the wards if the evidence supports that conclusion. But if the evidence does not support that conclusion the reopening of the wards followed by an early closure would be wrong. So I decline in exercising my discretion to order the reopening.

Cited in 2 later judgments