Bullmore & Anor v West Hertfordshire Hospitals NHS Trust [2007] EWHC 1636 (Admin)

[2007] EWHC 1636 (Admin)Case No CO/946/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/07/2007
Before
MR JUSTICE WALKER
Between
(1) ZENA BULLMOREClaimant(2) DONALD GIDDINGSClaimantWEST HERTFORDSHIRE HOSPITALS NHS TRUSTDefendant
Mr David Wolfe (instructed by Leigh Day & Co Solicitors) for ClaimantMr Jeremy Hyam (instructed by Capsticks Solicitors) for DefendantHearing Hearing dates: 21 & 22 June 2007
Judgment

Introduction

[1]The defendant is a body forming part of the National Health Service (“NHS”), and is responsible for the provision of hospital services in West Hertfordshire, which includes the towns of Hemel Hempstead and Watford and the city of St Albans. Each of Hemel Hempstead and Watford currently has a district general hospital providing accident and emergency (“A&E”) services. These include what are known as “acute services”, which in broad terms involve the provision of emergency medicine and surgery. St Albans has a community hospital. The hospitals at Hemel Hempstead and Watford are within the areas of Dacorum Borough Council and Watford Borough Council respectively. The hospital at St Albans is within the area of St Albans District council.[2]The first claimant is Mrs Zena Bullmore. She chairs the Dacorum Hospital Action Group (“the Action Group”), a campaign group which aims to ensure that Hemel Hempstead hospital is maintained as the district’s general hospital and that it provides the local population with the best medical services available. A major concern for the Action Group has been a plan to centralise acute services and certain other hospital services at Watford. If that plan comes to fruition then those services will no longer be available at Hemel Hempstead.[3]By amendment to the claim form Mr Donald Giddings has been added as second claimant. Mr. Giddings is 78 years old. He has serious heart problems. He requires oxygen on a constant basis. He considers there is a serious risk to his health if he has to travel to Watford General Hospital for services which he might well require in an emergency.[4]The claimants challenge a decision taken by the defendant on 16 November 2006 to reorganise its services. The decision was taken following circulation of a public consultation document entitled “Delivering a healthy future in west Hertfordshire” (“the Healthy Future PCD”). I shall refer to the decision of 16 November 2006 as “the Healthy Future Decision”, and to the consultation which preceded it as “the Healthy Future consultation”. In argument Mr David Wolfe for the claimant outlined three main heads of challenge. The first was that there has been a lack of fairness in the consultation process prior to reporting the outcome of consultation to the board of the defendant. The second was that there had been deficiencies in the way in which the outcome of consultation had been reported to the board. The third concerned how the board had dealt with an alleged decision by a neighbouring trust to abandon proposals for a new hospital at Hatfield.[5]The defendant vigorously disputes these heads of challenge. It says at the outset that the claimants have misunderstood the extent of the Healthy Future Decision and the preceding consultation. According to the defendant the crucial decision to centralise at Watford was taken by the defendant in 2003, this having been Option Two in a public consultation document circulated in March that year by the Bedfordshire and Hertfordshire Strategic Health Authority (“the SHA”). This document was entitled “Investing in Your Health”, and I shall refer to it as “the Investing in Health PCD”. As explained below, a decision to proceed with Option Two was taken on behalf of the SHA and certain other NHS bodies on 3 November 2003 by a joint committee with delegated powers. I shall refer to this decision as “the Delegated Investing in Health Decision”. Mr Hyam, on behalf of the defendant, says that the defendant itself decided later in 2003 to adopt the Delegated Investing in Health Decision. In these circumstances the defendant argues that the question whether to centralise acute services at Watford could not have been, and was not, part of the Healthy Future consultation, with the result that the present challenge is misconceived.[6]As to the specific heads of challenge, the defendant’s case is that the Healthy Future consultation was procedurally fair and was appropriately reported, and that developments in relation to Hatfield hospital provide no basis to overturn the Healthy Future Decision.[7]It is in any event said by the defendant that the present challenge is either too late, or if not too late has been overtaken by events in that the proposed centralisation at Watford has been confirmed in the course of a recent acute services review (“the Acute Services Review”).[8]It is fundamental to stress that the court is not concerned with the merits of the Healthy Future Decision. Whether that decision is desirable or appropriate is a matter for the defendant, provided that it does not breach principles of public law. The outcome of this case will not mean that the Healthy Future Decision is either right or wrong. The outcome will turn on an examination of whether what has been done by the defendant infringes principles of public law or not. For that purpose, the issues that I have to determine can be formulated in this way: A) What was the scope of the Healthy Future Decision and the preceding consultation? B) Were the procedures adopted in consultation unfair? C) Was the Healthy Future Decision vitiated by a failure to give proper consideration to the outcome of the consultation? D) Was the Healthy Future Decision vitiated by developments at Hatfield? E) Is the challenge too late? F) Has the challenge has been overtaken by events? G) What orders are appropriate in the light of the above?[9]It is important to the defendant that there be a speedy resolution of this matter. Accordingly on 29 June 2007 I handed down an interim judgment which set out my conclusions and the essential reasoning leading to those conclusions. The present judgment replaces the interim judgment in its entirety. I deal first with the NHS framework and the history of events. I then deal with relevant legislation and guidance, and the legal principles which are agreed to be applicable, before taking each of the above issues in turn.

The NHS Framework

[10]The three NHS organisations primarily responsible for patient services at present are Strategic Health Authorities, NHS Trusts, and Primary Care Trusts (“PCTs”). Material produced by the Department of Health (“DoH”) explains that Strategic Health Authorities are the local headquarters of the NHS. They liaise between Departmental policy makers, National Clinical Directors, the Department’s Director of Delivery, and the local NHS. Strategic Health Authorities oversee planning within their area. They are responsible for ensuring that PCTs and NHS Trusts make adequate plans and for consolidating these, at Strategic Health Authority level, into a Local Delivery Plan which is agreed by the DoH. The Strategic Health Authority is responsible for the allocation of strategic capital and for approving business cases for major capital schemes.[11]PCTs lead local planning, and secure the provision of a full range of services. They manage and develop primary healthcare services, develop and improve local services, and lead the integration of health and social care. PCTs take the lead in planning and are responsible for creating local plans which describe NHS and joint NHS and social care priorities in their area. The plans are guided by the targets and delivery dates set out in the Priorities and Planning Framework and the detailed objectives in the NHS Plan and National Service Frameworks for particular patient groups and conditions, as well as addressing the needs of the community as a whole. The Local Delivery Plan (“LDP”) is a three-year plan and identifies milestones for progress at monthly, quarterly or annual intervals. It is supported by financial and strategic plans showing how resources will be deployed. Once agreed by the board of the PCT, these plans specify detailed services which the PCT intends to provide or procure for its local community in the year ahead. They are the business plans of the organisation. The LDP is agreed with the Strategic Health Authority. Contracts for Commissioned Services/Service Level Agreements (SLAs) are negotiated by PCTs with NHS Trusts, social service partners, and other service providers.[12]The main functions of an NHS Trust are to provide services to patients (these may be acute services, ambulance services, mental health or other special services, e.g. for children). It is their function to ensure that services are of high quality and accessible. NHS Trusts are also expected to lead the development of new ways of working to ensure a patient-centred service.[13]There is a statutory duty for each local NHS body to consult the Overview and Scrutiny Committee of the relevant local authority on any proposals for any substantial development or variation in health service provision. There is a further statutory duty to consult patients and the public on service planning and operation as well as in the development of proposals for change. These statutory duties are examined in more detail below.

History of Events

[14]The starting point is the Investing in Health PCD of March 2003. This began with a letter from the chairman of the SHA, explaining that the consultation was being conducted by the SHA “on behalf of the NHS across Bedfordshire and Hertfordshire.” The document continued with a summary, which included the following: 1. This document describes the future vision for health care services across the area of Bedfordshire and Hertfordshire Strategic Health Authority. It lays out the implications of this vision for major hospital services with two options for how and where major hospital services are provided. 2. No change is not an option – our hospitals are already struggling to provide good quality services on all sites, leading to unplanned services closure. This situation will get worse in the future. Over the last three months we have consistently heard from people across the two countries that they want services to change to ensure better healthcare. We want to provide high quality safe and sustainable health services that people can have confidence in when they need to use them. 3. At the moment only about 5% of all health care treatments take place in major hospitals. This is expected to fall as more and more care is provided outside of major hospitals. This has been shown to provide better quality care with shorter waits for treatment, and shorter journey times. We want to continue this direction of travel, delivering more care to more people closer to home and in more appropriate settings. 4. Less than 0.5% of all health care treatments result in a patient staying in hospital overnight. Again, we expect these numbers to reduce as more people are transferred from a major hospital to intermediate care facilities closer to home. For example, an older person who has had a stroke may be admitted to the major hospital initially. Here they will most probably be cared for in a specialist stroke unit where they will receive specialist care. But when they are stabilised they will be transferred to a local hospital to receive therapy and rehabilitation to enable them to return home.[15]The Investing in Health PCD identified six existing major hospitals. In west Hertfordshire these were the hospitals at Hemel Hempstead and Watford. In east and north Hertfordshire the existing major hospitals were the Lister Hospital in Stevenage and the Queen Elizabeth II Hospital in Welwyn Garden City. In Bedfordshire they were Bedford Hospital and Luton & Dunstable Hospital. The summary explained that it was proposed to provide four major acute hospitals providing inpatient emergency acute hospital services, for example paediatrics, obstetrics, major trauma, emergency surgery and medicine. One of these four major acute hospitals would be at Bedford, and another at Luton & Dunstable. As to the location of the remaining two major acute hospitals, and the consequences for other hospitals in the area, the summary explained that there were two options.[16]The main body of the Investing in Health PCD described in some detail the services currently provided and the rationale for change. Chapter 3, headed “Vision for Future Services”, included the following: 4.1 We are looking to develop a model of future services which offers far better care to the residents of Bedfordshire and Hertfordshire. The key elements of this vision are: … A & E departments 4.9 There will be an A&E department at all six major hospitals. The vast majority of people who use the A&E service on these sites will receive their care as normal. Non-acute A&E will see about 80% of current patients. These will be supported by other emergency care facilities, …. State of the art new “surgicentres” 4.10 These are centres dedicated to performing elective or planned surgery. By focusing on elective care, operations are not cancelled or delayed due to an emergency taking priority. With good quality management they can improve the number of people receiving treatment so rapidly reducing waiting times for operations. This includes operations for hip and knee replacement, cataracts, grommets, tonsillectomies, hernias and so on... Major hospitals 4.11 These will provide a full range of hospital-based care, with different services distributed across the two countries. The hospitals will work closely together, developing “networks” for specialised services. These will enable doctors and nurses to work closely together across the whole area. 4.12 We want to provide acute services at four major hospitals across the two countries; and “non-acute” services at the other two based around a surgicentre. This provides a balance between local access and sufficient size to provide good quality services. With fewer than four acute sites, travel times would increase more; with more than four acute sites the quality of care would be compromised. Levels of activity (number of patient contacts or episodes) will be higher at the two non-acute sites. Numbers of beds will be higher at the four acute sites… The key elements of this vision are: A & E departments State of the art new “surgicentres”

Major hospitals

[17]Chapters 5 to 9 dealt in detail with future primary care services, future intermediate care services, proposals for community hospitals and diagnostic and treatment centres, the future of major hospital services, and certain specialist services. Chapter 10 turned to the need for acute services to be concentrated on four major hospital sites with non-acute services at two major hospital sites, and explained that two options had been developed for this purpose. Some general remarks about the two options were made in paragraph 10.3, as follows: 10.3 We have carried out detailed capacity, financial and journey time analysis, using independent nationally recognised advisers. The output of this analysis is presented later in this chapter. Whilst every attempt has been made to ensure the robustness of this analysis, projecting health care activity and expenditure over a nine year period is extremely complex and is subject to many changing variables. This should be borne in mind when reviewing the figure presented.[18]The remainder of chapter 10 then described the two options. For present purposes the key points are that Option One envisaged that the remaining two major acute hospitals would be at Hemel Hempstead, servicing west Hertfordshire, and the Lister Hospital in Stevenage, servicing east and north Hertfordshire. Option Two envisaged major acute hospitals at Watford, serving west Hertfordshire, and at a new hospital to be built at Hatfield, serving east and north Hertfordshire. Separate sections of chapter 10 described the implications of the two options for capacity, finance, journey times and emergency options. Key differences between the two options were identified. One such difference was that Option One was cheaper, with annual revenue costs for major hospital care about £10 million less than for Option Two. As against that, Option Two gave greater potential to develop a medical school over time, which was likely to be more attractive to staff. Under Option One more people than currently would be likely to travel out of the two counties to receive major hospital care. By contrast, Option Two would require fewer people than currently to do this. Option Two resulted in about 170 more beds in major hospitals in Bedfordshire and Hertfordshire.[19]Chapter 11 described how changes were expected to proceed over time. This was split into the first one to three years (2003 to 2006), and the next three to six years (2006 to 2009). In the period 2003 to 2006 it was expected that, among other things, trauma units would begin to be developed at four hospitals across the counties, the exact ones depending on the outcome of the consultation process. During the period 2006 to 2009 it was expected that there would be a development of the infrastructure to support a cancer centre, either at Hemel Hempstead in Option One or at Hatfield in Option Two.[20]The SHA, and each of the eleven PCTs within the SHA, gave formal power to take the Delegated Investing in Health Decision to a special joint committee. The joint committee comprised one representative from the SHA and one representative from each of the eleven PCTs. At a meeting on 3 November 2003 the joint committee voted eleven in favour of Option Two and one in favour of Option One. A report to the SHA by Mr Simon Wood, director of strategy, noted that following the Delegated Investing in Health Decision the DoH had given the SHA approval to develop a system-wide strategic outline case, and work had began on this. A programme structure would need to be devised. Among other requirements, the structure would need to ensure that there was “active and continuing involvement from stakeholders and the public in the development of plans.”[21]It was said by the defendant that shortly after 3 November 2003 it adopted the Delegated Investing in Health Decision. I shall return to this when I deal with Issue A below.[22]In August 2005 the defendant responded to a request it had received under the Freedom of Information Act 2000. Among other things, the request concerned questions which had arisen at a meeting of a patients’ forum on 22 June 2005. Question four concerned proposals to deal with an expected financial deficit. The response was as follows: In terms of Investing in Your Health consultation, acute services will be centralised in Watford, this is predicated on there being a Hatfield development. This is the principle which was consulted on…[23]A statement of Mr David Law explains that he is the chief executive of the defendant, having been appointed to that post in July 2004, prior to which he was director of planning for the defendant. In his statement, and in other documents quoted below, the abbreviation “IiYH” is sometimes used to describe the strategy after the Delegated Investing in Health Decision had been taken. On other occasions it is used to refer to the proposals in the Investing in Health PCD. Paragraphs 5 and 6 of Mr Law’s statement describe his responsibilities as chief executive in these terms: 5. My responsibilities include ensuring the implementation of the strategic plan for the NHS in Hertfordshire and Bedfordshire known as Investing in Your Health (IiYH). This decision was made in November 2003 by the [SHA and PCTs] … [and] agreed that there should be a single acute hospital in West Hertfordshire, a redeveloped Watford General Hospital, and a non-acute hospital in Hemel Hempstead site. A planned elective surgical centre for West Hertfordshire was also to be provided at Hemel. 6. I am also responsible for ensuring that the Trust meets its statutory duties to ensure good clinical governance (quality of care), to consult and to secure financial balance.[24]Mr Law’s statement continued: “7. The adoption of IiYH demonstrates the widespread recognition that the current pattern of acute hospitals services in Hertfordshire is unsustainable and needs reconfiguring. Some two years ago the Trust’s financial position deteriorated sharply and it became clear that traditional plans for tackling overspends such as ward closures and improvements to efficiency would be insufficient to tackle the problem… 8. More importantly, the financial and logistical pressure were making it increasingly difficult to provide safe clinical services across a number of different hospital sites. My new Medical Director, Prof Graham Ramsay, advised me, the Chairman and other Board members soon after his appointment (in May 2006) that he did not consider that the Trust was able to deliver safe clinical services within the current service configuration… He has used the example of the lack of adequate levels of back up equipment by virtue of having acute services on two sites, eight miles apart. The evolving process 9. I became convinced that the only sustainable way forward would be to expedite the configuration of services already consulted upon and agreed as part of IiYH and I advised the Board accordingly at a Board briefing in April 2006. The Trust’s Planning Team were charged with developing options to achieve this objective, in consultation with clinicians and other key stakeholders. This process was known as “Interim Measures”…In April 2006 in the light of its deteriorating financial position and at the behest of the SHA, the Trust explored the possibility of centralising acute services at either Watford General or at Hemel Hempstead, with elective services on the other site. 10. External consultants … concluded that centralising acute services at [Hemel Hempstead] would cost approximately £35m more than the Watford option. Had the analysis suggested that centralisation at [Hemel Hempstead] would have been more cost effective, I would have advised the SHA and PCTs as it is my understanding that as a service provider rather than a service commissioner the Trust does not have legal powers to consult formally on strategic change of this kind. In the event the analysis endorsed the original decision reached under IiYH.

The evolving process

[25]The next relevant step taken by the defendant was to prepare a report for the Hertfordshire County Council Oversight and Scrutiny Committee (“the OSC”) describing the defendant’s financial recovery plans. These included an “interim service reconfiguration.” Three options were identified. Option A was to centralise acute services at Hemel Hempstead. Options B and C proceeded on the basis that acute services would be centralised at Watford, and set out differing proposals for the consequent reorganisation of services at Hemel Hempstead and St Albans. At a meeting on 8 June 2006 Mr Law explained to the OSC that the defendant did not regard option A as a preferred option, both because it was inconsistent with the Delegated Investing in Health Decision, and because of the substantial excess capital costs when compared to centralisation at Watford. The minutes of the OSC meeting record that the OSC: … recommended that in order to ensure full transparency the consultation process should include options B and C, but not option A which is not in line with the agreed Investing In Your Health Strategy.[26]Meanwhile the defendant engaged Clear Communication Specialists Limited (“Clear”) to act as a consultant in relation to the Healthy Future PCD. The joint managing director of Clear responsible for the Healthy Future PCD was Professor John Underwood.[27]The Healthy Future PCD began with an executive summary. This comprised a series of bullet points. I set out relevant points, which for convenience have been given numbers in square brackets: [1] The clinical case for consolidating hospital in west Hertfordshire by separating planned and emergency treatments is overwhelming. This separation is now widely recognised to be best practice. [2] It is safer to have acute services on a single hospital site. We are currently spreading these services too thinly and trying to provide too many services on too many sites for the resources we have. This is having an adverse effect upon the quality of care we are able to deliver to patients… … [6] In 2005/6 the West Hertfordshire Hospitals NHS Trust had a total deficit of just under £27m. This deficit was the fourth annual deficit in the last five years. The Trust’s total accumulated deficit currently stands at £41m. [7] Failure to address our financial problems now will result in the Trust’s position deteriorating even further. We have already identified £15m of potential savings that if achieved will reduce the current year deficit to £12m but this is only the start. We now need to address the issue of service duplication. [8] The West Hertfordshire Hospitals NHS Trust is therefore consulting with the public, its staff and its other stakeholders on a series of proposed service changes. [9] We are proposing to consolidate emergency care on one hospital site and provide most planned surgery on another hospital site as an interim measure until the new planned Surgicentre at Hemel Hempstead is opened in 2008 by the independent sector. One option would see acute services being provided at Watford General Hospital with most planned surgery at St Albans City Hospital and outpatient, community and intermediate care services at Hemel Hempstead General Hospital. The other option envisages most planned surgery being undertaken at Hemel Hempstead instead of St Albans. In both options an Urgent Care Centre treating minor illness and minor injuries will be provided at Hemel Hempstead General Hospital. [10] Consolidating services onto single hospital sites will improve patient care and deliver important economics of scale and financial savings. We estimate that annual savings between 2006 and 2013 would be between £10m and £11m a year for a single capital investment of between approximately £31m and £33m…[28]Pages 8 to 11 of the Healthy Future PCD gave details of the background, the clinical case for change and the financial case for change. At pages 12 to 14, under the heading “proposals for change” the document referred to planned new health facilities for the period from 2008 onwards. It continued: We now propose to consolidate services in advance of these new building projects. In particular we need to make interim arrangements for the period between now and mid 2008…there are two different ways in which this consolidation might be achieved…”[29]The document then described two options. It made it clear that under each of these two options acute services, such as complex surgery and intensive care, would be centralised at Watford. Under option 1 the majority of planned surgical services – such as hip replacement or straightforward day surgery – would be centralised at St Albans, while outpatient services and diagnostic tests would continue at Hemel Hempstead. By contrast under option 2 centralisation of the majority of planned surgical services would take place at Hemel Hempstead rather than at St Albans. Outpatient services, diagnostic tests and intermediate care services would continue at St Albans, but would be largely dependent on the PCT’s plans for development of community services. The document also described how from 2008 onwards it was expected that, among other things, the range of service providers would include the independent sector running a surgicentre at Hemel Hempstead. The contrasts between the two options were set out in a table. This made it clear that there were significant financial advantages arising from option 1. That option would produce annual net savings of £11.2 million per year, compared with £10.5 million per year. Option 1 was expected to involve a one off capital cost of £31.4 million, compared to a significantly greater £33.2 million for option 2. Immediately above this table the text for the section on proposals for change contained a concluding paragraph as follows: It is worth noting that the Trust originally explored three options for service consolidation. However, the Hertfordshire County Council Overview and Scrutiny Committee held on 8th June 2006 advised the Trust to discount one option (centralisation of acute services to Hemel Hempstead) as this configuration runs counter to the principles previously agreed through “Investing In Your Health” and due to the significant capital cost.[30]A questionnaire accompanied the Healthy Future PCD. This set out three questions as follows: Question 1 Please tick the appropriate box Do you favour option one or option two? -Option one  -Option two  -Not sure/don’t know/neither  Question 2 Please continue on a separate sheet if necessary. Are there any other options that you would prefer the Trust to consider that are equally cost-effective and clinically safe? If so please describe them below. Question 3 Please continue on a separate sheet if necessary. Can you see any ways in which the proposals could be improved? If so please explain below.[31]One of the bodies consulted by the defendant was the West Hertfordshire NHS Trust Patient and Public Involvement Forum (“The Patients Forum”). A letter had been written by the Forum setting out questions regarding the defendant’s proposals. This led to a reply from Sarah Shaw, the defendant’s Director of Planning. The reply was addressed to the chair of the Patients Forum, Mrs Gunson. It included the following: ... you raise concerns that both our proposals plan to centralise acute services at Watford and as a result, you feel there is no real consultation on this element of the change. Forum members will remember that the decision to centralise acute services for west Hertfordshire was the subject of an extensive consultation exercise under Investing in Your Health (IiYH). Therefore, the concept of one acute centre for west Hertfordshire residents has previously been agreed and therefore does not require further consultation. Importantly, the Trust did explore the option of locating the centralised acute service at Hemel Hempstead rather than Watford, and presented both options to the Hertfordshire County Council’s Overview and Scrutiny Committee (OSC) prior to launching the consultation exercise. It was the opinion of the OSC that given the fact that the Hemel option would cost in excess of £35 million more to achieve than the Watford option and because such an option would not be consistent with IiYH, that the option of centralisation of emergency services at Hemel Hempstead General Hospital should be discounted. I note your support for Option 1 in relation to the transfer of elective surgical services to St Albans until the Surgicentre opens at Hemel Hempstead. ...”[32]At this stage I shall summarise the defendant’s account of the consultation exercise as described in two reports by Professor Underwood. Certain aspects of the defendant’s account are disputed by the claimant. I shall describe the opposing accounts when I deal with relevant issues.[33]A Report of October 2006 by Professor Underwood dealt with key findings from two “citizens’ juries”. It explained that members of the public of different ages had been recruited from different ethnic backgrounds and from different areas across West Hertfordshire. Jury members were given a detailed information pack. The juries assembled on Saturday 7 October 2006 at Hemel Hempstead General Hospital. The session for jury A was held at 9 45 a.m., and that for jury B at 11.00 a.m. At each of the jury sessions Professor Underwood acted as chair. There were two “rapporteurs”; Ms Suzy Garrett and Ms Lisa Farrell, account director and junior account executive respectively for Clear. Over the course of an hour each jury heard evidence about the Healthy Future PCD from witnesses. There were five witnesses, each of them employed by the defendant. The first witness was Mr Law, and he was followed by the defendant’s medical director, deputy medical director, head of nursing, and director of planning. After hearing from the witnesses, the jury retired to a private room to examine the written evidence and to consider three questions:
“Q1. You have heard evidence from a number of witnesses on this issue. Rather than consider which services should go where we would like you – the citizens’ jury – to consider the general principles involved in this decision. Which of the following statements, therefore, comes closest to your view? A) It would be better for patient care if planned surgery was consolidated on one single site and emergency care was consolidated on another single site. B) It would be better for patient if services remained split up and divided across several sites. Q2. Are there any other options for organising patient care that you would prefer the trust to consider that are equally cost-effective and clinically safe? If so, what are they? … Q3. Can you see any way in which the proposals contained in the consultation document could be improved? If so what are they? …”

If so, what are they?

[34]The October 2006 report included a section headed, “Verdict summary”. This explained that in answer to question 1, the juries voted unanimously for answer A, that is for planned surgery to be consolidated on one single site and emergency care consolidated on another single site. In relation to question 3, the verdict summary listed various suggestions that jury members had made for improvements to the defendant’s proposals. The summary in relation to question 2 needs to be set out in full: Other options for organising patient care that jury members would prefer the trust to consider included: - having both planned surgery and emergency care on a single site, located in the so-called ‘golden triangle’ (equidistant from all three hospital sites) - having emergency and acute services at Hemel Hempstead with elective care at St Albans.[35]The October 2006 report also contained an event evaluation summary. Among other things, 95% of jury members felt that the format of the event had given them the opportunity to express their personal views. 86% thought that the usefulness of witness evidence was good or very good. More than half of the jury members thought that the usefulness of the information pack and the opportunity to ask questions was good or very good.[36]Appendix 5 to the October 2006 described the jury deliberations. This recorded that on question 1 jury A agreed with option A for the “short term”. The account of jury B’s deliberations on question 1 was as follows: The jury thought that this question was a leading question. They also thought that it would have been better to have a broader selection of questions including one question asking what the jury thought an about the interim measures. “Surely this question is a no-brainer considering the evidence we have heard today.” …[37]In relation to question 2, appendix 5 explained that jury A, while understanding the financial reasons for immediate change, felt it important to consider some long term options. Their suggestion was that both planned surgery and emergency care be on a single site, located in the “golden triangle” between Watford, Hemel Hempstead and St Albans. As to jury B, appendix 5 recorded: The jury thought that this question was unfair as they were not knowledgeable about the Trust finances to come up with solutions that will be “equally cost-effective.” …[38]On question 3, appendix 5 noted among other things that jury A was greatly concerned about transport. One jury member commented that parking at Watford was “horrendous”. Detailed comments by jury B on a number of areas were then set out. I quote some of what was said on two of those areas: Moving the acute site to Hemel Hempstead… Several jury members thought that the acute site should be at Hemel Hempstead rather than at Watford as Hemel is a larger town, has better social facilities for staff and would be more central for St Albans and Tring patients. However, the jury recognized that some staff travelling from London may prefer to work in Watford. … … Transport “As more people will need to travel between St Albans, Hemel Hempstead and Watford there will need to be an improvement of the roads. … the witnesses seemed to skirt around the issue of transport and this issue needs to be raised.” “The panel is ducking the issue of physical access to the hospital sites.” The jury felt that they needed further reassurance and evidence that something was being done about the transport issue. … Moving the acute site to Hemel Hempstead…

Transport

[39]Professor Underwood’s report of October 2006 was not put before the board of the defendant. What was put before the board was a report by him dated November 2006, entitled “Independent Summary & Analysis Report.” This document dealt with the whole of the consultation process. The November 2006 report began with an executive summary. An overview, under the heading, “Responses”, gave an account of the completed questionnaires which had been submitted in response to the Healthy Future PCD, and of other aspects of consultation. For convenience, I have numbered the paragraphs and bullet points: [10] The consultation attracted well over 400 responses and in commenting on the proposals many respondents raised very similar concerns. [11] Key issues mentioned by respondents – and areas where the health community should offer reassurance or consider what it might do to address these issues – include: [11.1] public and private transport to and from Watford General Hospital and parking at this site. [11.2] Longer ambulance journey times for residents in Hemel Hempstead and the surrounding areas. [11.3] Staff well being and morale following service changes. [11.4] Public education about service changes including more information about what services are provided at which sites. [11.5] The adequacy of the Watford General Hospital site as a site for a major acute hospital. [12] In considering the consultation responses the trust board would be well advised to note the following: [12.1] The consultation exercise involved a wide range of activities including formal and lengthy written submissions, staff meetings, public meetings, citizens’ juries, an informed citizen’ consultation panel and a questionnaire. All of these activities deserve due weight and attention. [12.2] Those respondents who attended the citizens’ jury exercise were able to give the trust’s optional proposals full reflective consideration over the course of several hours. They questioned health service managers and clinicians intensely and clarified their own thinking through detailed debate. By the end of the process they were among the best informed citizens’ on health matters outside of the NHS itself and they offered not just understanding but endorsement of the principles of change as outlines in the consultation document. [12.3] The formal written responses also deserve careful attention as they offer a number of insights into community thinking and suggest ways in which proposals might be improved. [12.4] The numerical results of the questionnaire may appear to suggest that the people of West Hertfordshire favour the centralisation of planned surgical services at Hemel Hempstead. In fact they show more than the centralisation of planned surgical services at Hemel Hempstead is favoured by people who live there and the centralisation of planned surgical services at St Albans is favoured by people who live there. [12.5] It would appear that many respondents did not fully understand the options being placed in front of them or if they did they deliberately sought to promote an alternative option namely the option of establishing a full emergency, maternity and children’s service at Hemel Hempstead. [12.6] The views of people who responded to the consultation through qualitative methodology (written submission, engagement through meetings and discussion, citizens’ juries and panel) were honed by debate and reflection. There is some evidence that the views of those who responded through quantitative methodology (the consultation questionnaire) were more formulaic and involved language that was mobilised by a concerted campaign and copied by a number of people. [11.1] public and private transport to and from Watford General Hospital and parking at this site. [11.2] Longer ambulance journey times for residents in Hemel Hempstead and the surrounding areas. [11.3] Staff well being and morale following service changes. [11.4] Public education about service changes including more information about what services are provided at which sites. [11.5] The adequacy of the Watford General Hospital site as a site for a major acute hospital. [12.1] The consultation exercise involved a wide range of activities including formal and lengthy written submissions, staff meetings, public meetings, citizens’ juries, an informed citizen’ consultation panel and a questionnaire. All of these activities deserve due weight and attention. [12.2] Those respondents who attended the citizens’ jury exercise were able to give the trust’s optional proposals full reflective consideration over the course of several hours. They questioned health service managers and clinicians intensely and clarified their own thinking through detailed debate. By the end of the process they were among the best informed citizens’ on health matters outside of the NHS itself and they offered not just understanding but endorsement of the principles of change as outlines in the consultation document. [12.3] The formal written responses also deserve careful attention as they offer a number of insights into community thinking and suggest ways in which proposals might be improved. [12.4] The numerical results of the questionnaire may appear to suggest that the people of West Hertfordshire favour the centralisation of planned surgical services at Hemel Hempstead. In fact they show more than the centralisation of planned surgical services at Hemel Hempstead is favoured by people who live there and the centralisation of planned surgical services at St Albans is favoured by people who live there. [12.5] It would appear that many respondents did not fully understand the options being placed in front of them or if they did they deliberately sought to promote an alternative option namely the option of establishing a full emergency, maternity and children’s service at Hemel Hempstead. [12.6] The views of people who responded to the consultation through qualitative methodology (written submission, engagement through meetings and discussion, citizens’ juries and panel) were honed by debate and reflection. There is some evidence that the views of those who responded through quantitative methodology (the consultation questionnaire) were more formulaic and involved language that was mobilised by a concerted campaign and copied by a number of people.[40]Section 3 of the November 2006 report was entitled “Consultation Process.” It set out various criteria applicable to a consultation process as a whole, and other criteria applicable to consultation documents and questionnaires, and explained why it was considered that the process undertaken in the present case met those criteria. Section 3 continued:
“Reliance upon quantitative responses [31] In total some 4218 completed consultation questionnaires were received. Of these, 157 (4%) were in favour of option one, 3477 (82%) were in favour of option two and 584 (14%) were not sure, did not know, favoured neither option or failed to answer the question. [32] At first glance it may seem that these raw figures suggest an overwhelming majority view, within the local community, in favour of option two. It is important, however, to ask whether there is any evidence of “batch completion” and to examine the demographic evidence behind these responses. [33] There is, in this particular case, significant evidence of “batch completion” (i.e. evidence that a considerable number of questionnaire were completed as part of a co-ordinated campaign, returned to the consultation organisers as a single batch, returned to the consultation organisers from a single source and/or contained identical wording or question responses that had clearly been suggested to respondents by a third party). [33.1] In this particular case well over 2000 questionnaire responses contained the identical phrase (in response to question two) “to permanently locate emergency, maternity and children’s services” at Hemel Hempstead. [33.2] Over 400 questionnaires were returned via a single local MP (backing option two by almost 100 to 1). [33.3] Over 3000 questionnaires were returned by the Dacorum Hospital Action Group (backing option two by almost 100 to 1). [33.4] In total some 84% of all questionnaire responses came from the two sources identified above. [34] It should be noted that batch completion is neither illegal nor necessarily wrong. There can be perfectly legitimate reasons for batch completion. Campaigning organisations are entitled to organise their supporters in support of a particular consultation option. But the trust board would be failing in its duty if it took this raw data at face value and ignored the fact that batch completion had taken place. [35] Similarly the trust board should consider the demographics of the questionnaire responses. These are detailed below in section four of this document. But in summary it is important to recognise that overall 82% of respondents favoured the option that involved the centralisation of planned surgical services at Hemel Hempstead and 86% of respondents lived in or close to Hemel Hempstead. By contrast 4% of respondents favoured the option that involved the centralisation of planned surgical services at St Albans and 5% of respondents lived in or close to St Albans. [36] For these the trust board would be well advised to consider the evidence of all the consultation activities undertaken during this exercise and not just the evidence arising from the questionnaires. Similarly the board should bear in mind the advice of the Cabinet Office Consultation Guidance…”
When analysis responses, remember that consultation is not a public vote.” [33.1] In this particular case well over 2000 questionnaire responses contained the identical phrase (in response to question two) “to permanently locate emergency, maternity and children’s services” at Hemel Hempstead. [33.2] Over 400 questionnaires were returned via a single local MP (backing option two by almost 100 to 1). [33.3] Over 3000 questionnaires were returned by the Dacorum Hospital Action Group (backing option two by almost 100 to 1). [33.4] In total some 84% of all questionnaire responses came from the two sources identified above.[41]After an examination of process issues raised by some respondents, section 3 concluded that the consultation process was not perfect but in general terms was fit for purpose and that the defendant was entitled to feel that it conducted the consultation in a fair, adequate and appropriate manner.[42]Section 4 of the November 2006 report was headed “Consultation Responses”. It recorded that there had been 4218 returned questionnaires. Of these, 4% (157 respondents) chose option 1, and 82% (3477 respondents) chose option 2. The remaining 14% (584 respondents) gave another response such as (not sure, “don’t know” or “neither”). A selection of comments was set out, including the following:
“Neither of these options is a safe or fair way to treat the residents of Hemel, St Albans or Watford, all of which are continually growing communities and each deserve a full NHS service which is easily accessible to all. Seriously ill patients cannot be expected to travel to Watford whose road links leave a lot to be desired, especially on busy shopping or football days. New housing is constantly being built; we need a proper health service.”
[43]On question 2, section 4 of the November 2006 report gave a selection of comments including the following: [62] Fifty one per cent (2168 out of 4218 respondents) of the returned questionnaires contained the following comment in favour of option two – “to permanently locate emergency, maternity and children’s services at Hemel Hempstead.” [63] The majority of other questionnaires received contained a part of this comment such as “emergency, maternity and children’s services at Hemel Hempstead”. A large number of the questionnaires also contained the words “retain all services at Hemel”, “return all services to Hemel” or “full services at Hemel”. [64] not in a position to judge [64.1] “I don’t see how patients are in a position to judge whether any option is cost-effective or clinically safe.” [64.2] “No ordinary citizen can judge these. Please retain the status quo at Hemel Hempstead. Watford is a ghastly place – impossible to get to. I do not approve of any reduction of services at Hemel Hempstead.” … [65] need for further information … [65.3] “Without detailed information, cost effective alternatives are impossible.” [65.4] “I would prefer St Albans, Hemel and Watford to retain full hospital facilities at all three sites. I can’t tell if this is ‘equally cost effective’ as this [consultation] leaflet doesn’t give costings.” [66] hemel hempstead general hospital [66.1] “The option of keeping Hemel Hempstead Hospital running IS viable. What will happen if it closes is that the money ‘saved’ will go on the extra ambulance mileage, patient transport costs and longer-term patient care that will be required if certain emergency cases have to be taken to Watford General and then become more acute on the way. Cost should not come into this equation. The closure of Hemel Hempstead Hospital is a short-sighted solution. The cost of upgrading Watford will outweigh any savings made by closing Hemel.” [66.2] One respondent suggested “do not proceed with the surgicentre [and] instead reorganise Hemel Hospital.” [66.3] “Retain acute services in Hemel Hempstead. Redevelop the St Albans site and concentrate all activity in Hemel Hempstead. Hemel Hempstead is growing and Watford General Hospital is difficult to get to and traffic is very bad. St Albans based people can easily travel to Hemel Hempstead, Luton and Dunstable or the QEII.” [66.4] “Forget the surgicentre and upgrade the Hemel site into a trust-run short day unit or surgery unit with outpatients, antenatal and diagnostic services with all emergency services at Watford.” [66.5] “Full services should be retained at Hemel Hempstead and Watford rebuilt. A new hospital at Hatfield cannot be financially justified and goes against the patient-led services close to the community.” [66.6] “Hemel Hempstead Hospital has modern buildings and it would save money to keep them and not spend millions in Watford.” [66.7] “No suggestions but given the facilities already available at Hemel Hempstead General Hospital it seems ridiculous to consolidate elsewhere, especially given the current expansion plans for housing and shopping in the area.” [66.8] “Enlarge Hemel where there is plenty of room for expansion and one new road would give easy access.” [66.9] “I do not consider either of the options safe. Watford Hospital is too difficult to access for non blue light transport. The M1, the ring road and Vicarage road are all regularly blocked by stationary traffic. Lives have already been lost. A&E and maternity services should be at Hemel Hospital …” … [70] alternative options … [70.3] “Deal with long standing poor working relations between the different NHS tribes – especially managers and doctors found most notably on the Watford site.” [70.4] “I consider that by far the best option would be to build a new hospital on green or brown field sight convenient for all three towns cities. I know that the authority views [this] option as impossible as they may not be able to claim the money from selling the land at the three existing sites. Clearly it is the best option…you should act like proper management and keep pressuring the government to allow you to fund my option, as I shall be doing.” [64] not in a position to judge [65] need for further information [65.3] “Without detailed information, cost effective alternatives are impossible.” [66] hemel hempstead general hospital [66.2] One respondent suggested “do not proceed with the surgicentre [and] instead reorganise Hemel Hospital.”

[70] alternative options

[44]On question 3, section four of the November 2006 report noted that approximately 10% of respondents, 414 out of 4,218, answered this question. Comments quoted included concerns about transport and suggestions either for a new hospital in the “golden triangle” or extending the hospital at Hemel Hempstead. Other aspects of the questionnaire were analysed. Section four then turned to formal written responses, noting that these included responses urging that there be comprehensive facilities at Hemel Hempstead, and a petition asking for full services at Hemel Hempstead which was submitted to the department of health with over 7500 signatures from residents in West Hertfordshire. In relation to citizens’ juries, section four included the following:
“[105] Set-up in a courtroom style, the events involved jury members listening to evidence, considering key questions in their private meeting room and returning to the courtroom to deliver a verdict on these questions. … [108] The citizens’ jury verdicts are summarised below. The detailed findings from each of the citizens’ juries appear in the appendices.”
[45]This was followed by a passage headed, “Verdict summary”, and which included the material I have place in italics in my quotation from the October 2006 report at paragraph 34 above.[46]Section four then described how ten members of the public had been recruited by the defendant to form an Informed Citizens’ Consultation Panel. Key findings were that 67% of panel members favoured option 1, as opposed to 33% favouring option 2. Other options which panel member would prefer the defendant to consider included revisiting the Delegated Investing in Health Decision.[47]Section five of the November 2006 report set out conclusions. This included the following:
“[132] Obviously concerns were also raised by a significant number of people about the consolidation of services away from Hemel Hempstead. It is not surprising – given the overwhelming number of responses from Dacorum (86% of the total) – that so many people expressed such a concern. Nor is it surprising that this strength of opinion should be expressed by Dacorum residents rather than by residents of (say) St Albans. Communities that perceive (rightly or wrongly) that they are at risk of “losing” services they currently receive will be more highly motivated to respond to a public consultation than communities that perceive they could be “winning” a higher service than they currently receive. [133] The trust board would be well advised to consider carefully the complexity hidden within the quantitative responses to this consultation and should give due weight to the qualitative responses (written responses, reports of meetings, citizens’ juries, citizens’ panels etc). … [135.5] It would appear that some respondents did not fully understand the options being placed in front of them or if they did they deliberately sought to invite the trust to consider an alternative option. Many respondents used an identical phrase in written responses inviting the trust…”to permanently locate emergency, maternity and children’s services” at Hemel Hempstead. This was clearly not an option being proposed by the trust and an option that stands outwith the general principles of the broader health community strategy Investing in Your Health. [135.6] The views of people who responded to the consultation through qualitative methodology (written submission, engagement through meetings and discussion, citizens’ juries and panels) were honed by debate and reflection. There is some evidence that the views of those who responded through quantitative methodology (the consultation questionnaire) were more formulaic and involved language that was mobilised by a concerted campaign and copied by a number of people. There is, of course nothing wrong with people mounting a concerted campaign to sway the outcome of a public consultation but the trust board has a duty to consider the fact that any such campaign might have influenced the outcome of quantitative methodology.”
[48]The November 2006 report contained six appendices. Appendix 3 was entitled “Citizens’ juries event details”. This comprised a single page with the times and venue, number of participants, names of facilitators and names of witnesses. Despite what was said in paragraph [108], Appendix 3 did not set out detailed findings from the citizens’ juries, nor did any other appendix.[49]A statement made by Professor Underwood for the purposes of these proceedings explained the difference between qualitative and quantitative measures by reference to definitions given by the Association for Qualitative Research. Qualitative and quantitative research are both designed to help organisational decision making. Qualitative research focuses on the nature of phenomena and their meaning, rather than their incidence. “It tends to have the following characteristics: direct face to face contact between the primary researchers and those being researched; in-depth examination of small scale samples or small numbers of observations; unstructured interviewing guides which are responsive to context and may be amended throughout the project; the researcher and his/her interpretative input is key to the process.” Quantitative research focuses on the incidence and statistical relationships of variables. “It tends to have the following characteristics: use of structured questionnaires with standard questions and limited responsiveness to context; little face to face contacts between the respondents and primary researchers …; use of large samples; results subjected to statistical analysis.”[50]On 10 November 2006 the East and North Hertfordshire NHS Trust issued a press release concerning developments in relation to the proposed new hospital at Hatfield. Among other things it stated: Following its review of the clinical financial assumptions underpinning Hertfordshire’s Investing in your Health strategy, the county’s two primary care trusts (PCTs) have today announced that the proposed new hospital at Hatfield is not affordable. In reaching this conclusion, however, the PCTs supported the principle established through Investing in your Health that acute hospital services in east and north Hertfordshire need to be centralised on a single site. Now that the Hatfield project is no longer going ahead, the only two sites on which this can happen are at the Lister in Stevenage or the Queen Elizabeth II (QEII) in Welwyn Garden City. The PCTs are now undertaking further work to test several options, prior public consultation starting in early 2007 on the future of hospital services across Hertfordshire.[51]A few days later the West Hertfordshire PCT and the East and North Hertfordshire PCT issued a discussion paper entitled “Investing in Your Health: The Next Steps” (“The Next Steps Discussion Paper”). An introduction by Ms Anne Walker, the Chief Executive of the PCTs, explained that they had been asked by the East of England Strategic Health Authority to review the original assumptions underpinning the health strategy for the county as part of a wider review of the acute hospital services within the east of England. The first main section of the Next Steps Discussion Paper was an introduction which summarised the Investing in Health PCD and its outcome. This was followed by a section headed “The position today”, as follows: “Most of the assumptions underpinning Investing in Your Health remain valid today:• The move to two main acute hospital sites is strongly supported by clinicians and remains the key to improving the quality of care and maintaining sustainable acute hospital services• The shift of care for many medical conditions into the community and out of hospital is taking place across the NHS and there is increasing evidence that preventing unnecessary or inappropriate hospital admissions benefits patients• In West Hertfordshire the rationale for focusing acute hospital services on the Watford General site remains as strong as ever ...”• The move to two main acute hospital sites is strongly supported by clinicians and remains the key to improving the quality of care and maintaining sustainable acute hospital services• The shift of care for many medical conditions into the community and out of hospital is taking place across the NHS and there is increasing evidence that preventing unnecessary or inappropriate hospital admissions benefits patients• In West Hertfordshire the rationale for focusing acute hospital services on the Watford General site remains as strong as ever[52]A section headed “So what’s changed?” identified developments that overall the NHS needed fewer acute hospital beds and less physical space, along with changes in funding hospitals and increased patient influence. A review of the reconfiguration of acute hospital services had highlighted that the original proposed configuration would exceed in cost the income available. This was particularly apparent when reviewing the proposed hospital at Hatfield where the high revenue costs associated with £550 million plus capital expenditure had a significant impact of affordability.[53]The Next Steps Discussion Paper concluded with a proposed timetable for discussions with the community, public and staff representatives about factors which would influence the future shape of health care in Hertfordshire. Immediately before this a section entitled “So what do we need to do now?” included the following:
“We believe that a new hospital at Hatfield is no longer the right solution for East and North Hertfordshire. We need to decide, therefore, where major acute hospital services should be consolidated in East & North Hertfordshire. This might be the Lister Hospital in Stevenage or the QEII Hospital in Welwyn Garden City, with the remaining hospital becoming a local general hospital. In West Hertfordshire major acute services will be concentrated at Watford General Hospital but we must get the scale of the development right ...”
[54]In advance of the Healthy Future Decision Mr Law submitted a report to the board of the defendant (“Mr Law’s report”). An introduction to the report explained that among other things the report aimed at succinctly to set out the outcome of consultation and the defendant’s responses on key issues raised, suggested criteria for deciding between the options consulted on, and a recommendation based on those criteria. The introduction added that immediately before the board meeting members of the board would hear the outcome of the public consultation and discuss the issues concerned with a range of stakeholders at a “feedback event”.[55]Under the heading, “Where we are now”, the report stated: 3. Acute services in Hertfordshire are not fit for purpose in the 21st century and are increasingly unsustainable clinically, financially and in terms of infrastructure. The case for change was widely consulted on in 2003 by the then Bedfordshire and Hertfordshire Strategic Health Authority under the title of “Investing in Your Health” (IiYH). At that time there was broad consensus on behalf of NHS and local government in the county on the need to: ◦ Concentrate acute hospital services in Hertfordshire on two sites rather than four, with the redevelopment of Watford General Hospital, the preferred option for West Herts; ◦ separate emergency and elective care; and to ◦ invest in a range of non-acute services closer to where patients live. 4. Delivering a Healthy Future in West Hertfordshire (Interim Measures) seeks to expedite these plans agreed under IiYH because services cannot continue to be delivered safely and/or affordably within the current model. The Trust has involved a range of stakeholders, including clinicians, patient’s representatives and local politicians in framing a way forward. There has been very full discussion in County and District Overview and Scrutiny Committees. 5. In addition the new Hertfordshire PCTs are undertaking a technical review of the conclusions of IiYH for acute hospital services, especially in relation to affordability and we are working closely with them on this. ◦ Concentrate acute hospital services in Hertfordshire on two sites rather than four, with the redevelopment of Watford General Hospital, the preferred option for West Herts; ◦ separate emergency and elective care; and to ◦ invest in a range of non-acute services closer to where patients live.[56]The “technical review” mentioned in paragraph 5 of the report was further explained in Appendix A as follows: In response to these affordability issues and other financial pressures, the new East of England Strategic Health Authority has announced a review of acute services across the East of England. The review will begin in Hertfordshire and to this end the new PCT has been commissioned to carry out a technical affordability analysis of IiYH strategy, as part of the Hertfordshire Plan This review is expected to challenge the planning assumptions of IiYH particularly regarding the capital cost of acute hospitals and the impact of changing patient flows and income. The Trust has been fully involved in the review and believes that the review is extremely unlikely to significantly alter the proposed configuration of hospital services in west Hertfordshire from that outlined in IiYH. The major change is expected to be the location and extent of capital development for east and north Hertfordshire. This is likely to increase the size of the catchment for [the defendant]. The outcome of the review is expected at the end of November 2006. This revised strategy will be subject to public consultation, which will take place between December and February.[57]Under the heading, “The case for change” Mr Law’s report continued: 12. The detailed case for change is being made in an Outline Business Case (OBC) which will seek approval to invest c£36-38m in order to facilitate the reconfiguration of acute hospital services throughout west Hertfordshire. The reconfiguration consists of three main elements:• the consolidation of emergency services, including A&E and Critical Care services at Watford General Hospital;• the segregation of planned surgical services from acute services; and• the creation two vibrant non-acute hospital sites providing a range of outpatient, diagnostic, urgent care and immediate care. 13. As mentioned above the service configuration concepts described above are wholly consistent with the previously agreed Investing in Your Health (IiYH) strategy developed by the Bedfordshire and Hertfordshire Strategic health Authority in 2003. The Trust is seeking to expedite these aspects of IiYH in advance of the intended implementation timetable, and therefore in advance of the new hospital for west Hertfordshire, as a consequence of the severe financial pressures currently being faced. However the Trust’s proposals are still based on the clinical evidence which underpinned the arguments in IiYH for improving patient outcomes. This includes evidence that the 10% of patients attending A&E with serious injury trauma should be treated in large specialist units with highly trained and experienced staff available ...• the consolidation of emergency services, including A&E and Critical Care services at Watford General Hospital;• the segregation of planned surgical services from acute services; and• the creation two vibrant non-acute hospital sites providing a range of outpatient, diagnostic, urgent care and immediate care.[58]Towards the end of this section of his report, Mr Law repeated the account given by the Healthy Future PCD of the reasons why the OCS advised against consulting on a specific option of centralisation of acute services at Hemel Hempstead. He noted that the PCT’s Acute Services Review had caused a delay in the proposed date of opening the Surgicentre at Hemel Hempstead. He said that the proposed Outline Business Case would review the efficacy of the preferred way forward. In doing so, the defendant would continue to collaborate closely with the PCT in the Acute Services Review to ensure strategic coherence and consistency.[59]At paragraph 24 of his report, under the heading “Finances and Efficiency”, Mr Law said that the scale of the defendant’s financial problems suggested that the workforce needed to be reduced by in excess of 500 posts. He referred to a history of the options which had been explored, set out in Appendix F. What was now sought was in line with the principles of the Delegated Investing in Health Decision, but sought to achieve the reconfiguration broadly within the estate currently available. The account of the history in appendix F recorded that the defendant had been keen to ensure that the feasibility of centralising services at either Hemel Hempstead or Watford was explored. The outcome had been that the cost of centralising at Hemel Hempstead would be almost double the capital cost the Watford option, because of a need to provide all new accommodation at Hemel Hempstead. Appendix F then set out the account of the OSC’s advice given in the Healthy Future PCD.[60]The next main sections of Mr Law’s report dealt with the public consultation exercise, issues raised in the consultation, and suggested criteria for selecting a preferred solution. It is necessary to set out substantial parts of these sections: Public Consultation Exercise 36. Following a long period of pre-consultation discussions the Trust went out to consultation on its reconfiguration proposals in July 2006, namely to consolidate acute care on the Watford General Hospital site and to provide most planned surgery on another hospital site as an interim measure until the planned new Surgicentre is opened on the Hemel Hempstead site in 2008 by the independent sector. The consultation offered two options for the interim provision of planned surgery ... … Emergency services are located at WGH in both options. The Trust’s preferred option is option 1 as it can be implemented more quickly using existing facilities. Option 2 requires significant short term investment in additional theatre capacity. ... 37. The key points by way of background are: ... ◦ Extensive consultation was undertaken, with a range of events in a wide range of locations across West Hertfordshire ... and the process was generally well received. The Trust was advised by external evaluators that the general performance of the consultation process was deemed to have been robust and fit- for purpose ... ◦ There was a clear distinction between quantitative and qualitative feedback, the latter being most clearly shown in Citizen’s jury exercises. ◦ Understandably, the great majority of “quantitative” responses were received from Dacorum residents who face the biggest changes to services provided from the Hemel Hempstead site. Their overwhelming preference was for Option 2. It should be noted however that Dacorum residents presently have the great majority of their elective surgery at St Albans City Hospitals, with only the more complex “ASA3” and emergency surgery provided from Hemel Hempstead. Issues Raised in the Consultation 38. Key issues mentioned by respondents highlighted in the external evaluation of the public consultation include:a. public and private transport to and from Watford General Hospital and parking at this site Comment: the vast majority of people accessing hospital sites do so by car. But there are a significant minority, often the most vulnerable, who are reliant on public transport. The Trust established a working group to consider transport and access issues including public transport and car parking. Improvements to both are planned. ...b. longer ambulance journey time for residents in Hemel Hempstead and the surrounding areas Comment: Eighty per cent of the circa 80,000 patients each year attending A & E Department at Hemel Hempstead will continue to be seen there. The remaining 16,000 will need to access an acute hospital, most of them at Watford. Their journey times will be slightly longer on average. The Trust is working closely with the East of England Ambulance Trust who estimate that they will require an additional 2 fully equipped ambulances, 24 hour hours a day, 7 days a week to meet the additional demand and continue to meet national response time standards.c. ... d ... e. the adequacy of the Watford General Hospital site as a site for a major acute hospital Comment: In order to concentrate acute services at Watford General, it will be necessary to transfer day surgery and some outpatient activity to the other hospital site(s) to free up space ... The Trust is aware that some have concerns about the Vicarage Road location in terms of traffic congestion, especially on match days. We have received assurances from the ambulance Trust that this will not affect the ability of blue light ambulance from meeting targets and from Watford Borough Council on traffic flows ... 39. In addition there are wider concerns which are frequently voiced, namely a. which services will be provided locally Comment: It is the Trust’s view that Outpatients, Diagnostics, Urgent care and probably intermediate care will be provided locally in community Diagnostic and Treatment Centres in line with the strategy IiYH. Some services will be provided from health centres by specialist primary care professionals. Lead responsibility for the implementation of such services lies with the Primary Care Trust and the Trust is working closely with the PCT to ensure seamless service provision to meet the needs of people within their various localities. b ... Suggested Criteria for Selecting a Preferred Solution 40. As mentioned above both Option 1 and Option 2 are predicated on the centralisation of acute services at Watford general and need to link in with a range of non-acute services which are likely to be provided from the existing hospital sites. Given the very serious financial situation and the fact that the proposals in Option 1 and Option 2 focus on the centralisation of elective surgical activity, with annual revenue saving of £10.5m-£11.2m, the following criteria are suggested. ... 45. Strategic flexibility, given that the Acute Services Review is ongoing. Implementing Option 1 in the short term does not preclude the transfer of elective surgery to Hemel in the medium term once the direction of the strategic review, and any available capital is known, and in particular whether the ISTC will go ahead at Hemel as planned. To that degree Option 1 could be seen as a decanting move. There would be less flexibility under Option 2 as the existing theatres at St Albans might have to be demolished. 46. Strength of public opinion: The prospect of change in the provision of health services is naturally unsettling to members of the public. It is clear from responses to consultation that many respondents believe that the proposals would mean the end of health services from the Hemel Hempstead hospital site. This is not the case. However it must be acknowledged that there was a much bigger “vote” for Option 2 than for Option 1, overwhelmingly by Dacorum residents. However most Dacorum residents receive their simple and moderate elective surgery at St Albans already, so option 1 represents minimal change in terms of current provision compared with option 2. Public Consultation Exercise ◦ Extensive consultation was undertaken, with a range of events in a wide range of locations across West Hertfordshire ... and the process was generally well received. The Trust was advised by external evaluators that the general performance of the consultation process was deemed to have been robust and fit- for purpose ◦ There was a clear distinction between quantitative and qualitative feedback, the latter being most clearly shown in Citizen’s jury exercises. ◦ Understandably, the great majority of “quantitative” responses were received from Dacorum residents who face the biggest changes to services provided from the Hemel Hempstead site. Their overwhelming preference was for Option 2. It should be noted however that Dacorum residents presently have the great majority of their elective surgery at St Albans City Hospitals, with only the more complex “ASA3” and emergency surgery provided from Hemel Hempstead. a. public and private transport to and from Watford General Hospital and parking at this site Comment: the vast majority of people accessing hospital sites do so by car. But there are a significant minority, often the most vulnerable, who are reliant on public transport. The Trust established a working group to consider transport and access issues including public transport and car parking. Improvements to both are planned. ... b. longer ambulance journey time for residents in Hemel Hempstead and the surrounding areas Comment: Eighty per cent of the circa 80,000 patients each year attending A & E Department at Hemel Hempstead will continue to be seen there. The remaining 16,000 will need to access an acute hospital, most of them at Watford. Their journey times will be slightly longer on average. The Trust is working closely with the East of England Ambulance Trust who estimate that they will require an additional 2 fully equipped ambulances, 24 hour hours a day, 7 days a week to meet the additional demand and continue to meet national response time standards. c. ... d ... e. the adequacy of the Watford General Hospital site as a site for a major acute hospital Comment: In order to concentrate acute services at Watford General, it will be necessary to transfer day surgery and some outpatient activity to the other hospital site(s) to free up space ... The Trust is aware that some have concerns about the Vicarage Road location in terms of traffic congestion, especially on match days. We have received assurances from the ambulance Trust that this will not affect the ability of blue light ambulance from meeting targets and from Watford Borough Council on traffic flows ... a. which services will be provided locally Comment: It is the Trust’s view that Outpatients, Diagnostics, Urgent care and probably intermediate care will be provided locally in community Diagnostic and Treatment Centres in line with the strategy IiYH. Some services will be provided from health centres by specialist primary care professionals. Lead responsibility for the implementation of such services lies with the Primary Care Trust and the Trust is working closely with the PCT to ensure seamless service provision to meet the needs of people within their various localities. b ...

Public Consultation Exercise

[61]At paragraph 47 of his report, Mr Law recommended that the board: a gives careful consideration to the qualitative and quantitative outcomes of the public consultation exerciseand develops mechanisms to continue meaningful dialogue with key local stakeholders; b. endorses the recommendation to centralise acute services in West Hertfordshire at Watford general without delay, subject to the availability of capital funding. This is because it was the conclusion reached following extensive public consultation on IiYH in 2003 and centralised acute services is the only way in which the Trust can become clinically or economically fit-for-purpose in the 21st century. It is also understood this is the emerging view of the PCT which will shortly be confirmed. c. In order to facilitate the centralisation of acute services agrees that the majority of planned surgery be centralised at a non-acute site. d supports implementation of Option 1 in the short term, subject to the preparation of a satisfactory Outline Business Caseas it would be quicker, easier and cheaper to implement than Option 2 and allows for greater strategic flexibility going forward. It would also mean minimal disruption to existing patient flows compared with Option 2. Under Option 1, approximately 12,800 patients (including outpatients) would need to travel to a different site. Under Option 2 27,800 would have to travel to a different location. e. reserves its position on the location of centralised elective surgical facilities in the medium term until there is greater clarity about the strategic direction of acute services in Hertfordshire. The Board will be kept fully briefed on the progress of the review.[62]The board of the defendant duly met at 1:00pm on 16 November 2006. The minutes made reference to the morning session at which board members had heard people’s comments first hand. After various formal matters, Professor Underwood introduced his report, explaining that he had undertaken an independent evaluation of the consultation process. This process had met the requirements of best practice and was fair, and appropriate. After summarising the extent of the consultation he noted that analysis showed support for Option 1 at 4%, and for Option 2 at 82%, leaving 14% “don’t know”. He emphasised that the board should take account of the qualitative outcome as well as the quantitative. He identified key issues from the written responses, citizens’ juries and informed citizen’s panel as including transport and parking, longer ambulance journey times, and re-visiting the Delegated Investing Health Decision. In response to a question Professor Underwood confirmed that the board should give equal weight to the qualitative and quantitative analysis.[63]The minutes then record that Mr Law presented his paper to the board. Among points that he highlighted were these:• The delivery of safe, good quality services on all three sites based on current income levels was unsustainable.• The investment required in technology and equipment replacement was not deliverable within the current configuration of services. Without sensible investment within the resources available services would deteriorate further.• The views of those expressed during the consultation process need to be given careful consideration but balanced against the overall position of the Trust now and into the future. The driver for the timing of change had been clearly identified as finance, but the driver of change overall was about the Trust’s ability to deliver good quality care with good clinical outcomes and be able to respond to policy changes that would affect Trusts.[64]The minutes next record Mr Law highlighting aspects of the case for change. Among these was a comment that investment in Watford General Hospital would provide a good environment for acute admissions, with a high proportion of single rooms and improved management of infection control. Mr Law summarised comments made during consultation. The summary is recorded in the minutes as including the following:• People were wanting to see the full range of acute hospital services available locally even though this was not one of the options for consultation.• People were concerned about access and travel times particularly for ambulances but also for visitors.• Concerns were expressed about the Watford site and its ability to cope.[65]Mr Law’s summary of the defendant’s response to concerns raised during consultation is recorded in the minutes as including the following:• There was an acknowledgment that the current transport system needed to be improved although a strong view was expressed by the Ambulance Trust that they would be able to manage the impact of reconfiguration and increased journey times without significant difficulties.• Car parking would be improved at Watford General Hospital.• Work would continue with community groups and communities to implement improvements to the transport arrangements.• The Trust would work with the ambulance service and the PCT to ensure that performance standards could be met and maintained. ...• Additional capacity would be provided on the Watford hospital site. The site infrastructure issues would be addressed as a consequence of the service redesign.[66]Mr Law’s recommendations to the board are described in the minutes in this way:• The consolidation of emergency care at Watford• Endorsement of the principle of separating elective and emergency work.• Support for Option 1 on the basis that it would be quicker and easier to implement, required less capital, delivered savings more quickly and represented the least change for the residents of Hemel Hempstead who have the majority of their surgery provided at St Albans City Hospital now.• … continued dialogue with key local stakeholders.[67]The minutes then record comments made by non executive directors. Among these was a comment that Mr Law’s recommendation b. should be: reworded to endorse the current decision to centralise at Watford rather than suggesting that the board should endorse a recommendation to that effect.[68]Members of the executive then responded, and are described in the minutes as making points which included the following:• The announcement made recently by the Primary Care Trust to review acute services across Hertfordshire and the likely abandonment of the proposed new hospital in Hatfield would impact on the future of services in West Hertfordshire by increasing the catchment population for services in West Hertfordshire. This was likely to provide greater certainty for sustained clinical infrastructure across the Trust.• The concerns of local residents who currently use Hemel Hempstead Hospital had been taken into account and were well understood. There was a recognition that dialogue with local communities needed to continue, that the Trust needed to publish transparent quality indicators against which the public could judge the Trust’s performance.[69]After dealing with questions from members of the public present at the board meeting, the board then voted on the recommendations set out in Mr Law’s paper. The board voted unanimously to adopt Mr Law’s recommendations a., c. and e. As to recommendation b., there was a change of wording approved in advance of the vote so that this recommendation read, “endorsed the decision to centralise acute services in West Hertfordshire at Watford General without delay, subject to the availability of the capital funding.” The board voted unanimously for this recommendation. Recommendation d. was that the board should support implementation of Option 1 in the short term, subject to the preparation of a satisfactory Outline Business Case. The board voted nine votes to one in favour of this recommendation.[70]Not long after the board had taken its decision on 16 November 2006, Mr Law received a letter from Hertfordshire County Council. This referred to previous correspondence in which Mr Law had asked whether the OSC would wish to consider the outcome of the Healthy Future consultation. The response was that relevant officers did not wish to undertake further scrutiny of “either the consultation process or the locality decision taken by your board at its 16 November meeting.”[71]In June 2007 a further consolation document was issued. This was entitled “Delivering quality health care in Hertfordshire”, and I will refer to it as the “Quality Health PCD”. A forward signed on behalf of the defendant, the East and North Hertfordshire NHS Trust, the West Hertfordshire PCT, and the East and North Hertfordshire PCT, explained that the document aimed “to detail our most significant and immediate proposals for change.” The first of these proposals concerned the consolidation of acute services for East and North Hertfordshire where the NHS preferred option was to consolidate at the Lister Hospital in Stevenage. However, the document explained that while this and certain other aspects of the Delegated Investing Health Decision were being revisited, the decision that Watford, and not Hemel Hempstead, should provide acute services was not being re-visited. In this regard the Quality Health PCD reflected what had been set out in an Acute Services Review Business Case of May 2007. The business case recorded that following the Healthy Future Consultation, the defendant intended centralising acute services at Watford, “subject to the pending Judicial Review.” The Quality Health PCD referred to the need to reconsider whether a new hospital at Hatfield would be the best use of NHS resources, and added: Meanwhile, the West Hertfordshire Hospitals NHS Trust is intending to bring forward the centralisation of acute services on the Watford site in advance of the development of the new hospital there. The reason for transferring services in advance of the new hospital is because the benefits of centralising the services are needed now in order to maintain safe and affordable clinical services in west Hertfordshire. Plans are in place for temporary buildings to accommodate the services transferring from Hemel Hempstead. This is subject to judicial review and the final transfer date cannot be confirmed. It is hoped that services will have relocated by late 2008.

Legislation and Guidance

[72]The defendant was created by the West Hertfordshire Hospitals National Health Service Trust (Establishment) Order 2000, SI 2000 No. 732 (“the Establishment Order”). The Establishment Order was made by the Secretary of State for Health under powers conferred by s 5 of the National Health Service and Community Care Act 1990. Under article 3 of the Establishment Order the defendant’s functions are to provide goods, hospital accommodation and services for the purposes of the health service at or from Watford General Hospital, Hemel Hempstead General Hospital, and St Alban’s City Hospital.[73]The main statutory provision relied on by the claimants is s.11 of the Health and Social Care Act 2001, as in force in November 2006. This, so far as material, reads:(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-- (za) Strategic Health Authorities (a) Health Authorities (b) Primary Care Trusts ... (c) NHS Trusts ... (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.[74]The Department of Health has issued policy guidance on s 11. This states:-- Involving and consulting' has a particular meaning in the context of s.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 contract and appropriate to the scale of the issue being considered. Part of the involvement process may be to discuss with stakeholders (sic) the most appropriate arrangements for any further involvement. For example it may become clear that• more effort needs to be made to involve the harder-to-reach groups that may be affected by the proposed change or more information needs to be given; or• a formal consultation process lasting for a set period of time is not necessary. ... Patient and public involvement is central to developing any organisation. NHS organisations must recognise and value the benefits of listening and responding to patients and recognise that the patient's experience is the catalyst for doing things differently to improve the way services are delivered. Real patient and public involvement is not about ticking boxes, it is about NHS organisations developing constructive relationships, building strong partnerships and communicating effectively. For patients' experience of health services to really improve, NHS staff will need to have ongoing and meaningful dialogue with them, their carers and the public about improving and developing services ... The new duty is the continuation of a process that will strengthen accountability to patients and the public and make sure there is transparency and openness in decision making procedure. We must develop and adapt health services around the needs of patients and the public which will build trust and confidence between local communities and the NHS.• more effort needs to be made to involve the harder-to-reach groups that may be affected by the proposed change or more information needs to be given; or• a formal consultation process lasting for a set period of time is not necessary. ...

Legal Principles

[75]It became clear in argument that there was common ground between the parties as to the legal principles governing this application. They can be summarised as follows.[76]In R v. North and East Devon Health Authority ex parte Coughlan [2001] QB 213, 258 Lord Woolf MR explained that:- “To be proper, consultation must be undertaken at a time when proposals are still at a formative stage. It must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken”[77]Webster J observed in R v Secretary of State for Social Services ex parte Association of Metropolitan Authorities [1986] 1 WLR 1, at p 4:
‘In any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine receipt of that advice.’
[78]There is an overriding need for fairness in any consultation process. The outcome of consultation must be taken into account with a receptive mind. There is, however, no duty to obtain the agreement or consensus of the consultees before acting.

Issue A: Scope of “Healthy Future”

[79]At an early stage in his submissions, Mr Wolfe was anxious to refute a contention by the defendant that, the Delegated Investing in Health Decision having chosen to centralise acute services at Watford, it followed that the Healthy Future consultation was concerned only with the two specific options identified in the Healthy Future PCD. Mr Wolfe pointed out that until the OSC recommendation on 8June 2007, the defendant had developed options for consultation which included centralisation of acute services at Hemel Hempstead. All that the OSC had done was to make a recommendation that the consultation process should not include this as a specific option. The reason given in the minutes was that the option of centralising acute services at Hemel Hempstead was not in line with the Delegated Investing in Health Decision. Mr Law thought that the OSC had a further reason for its recommendation, namely the excess capital cost, but this did not appear in the minutes. The fact that it was no longer planned to go ahead with the Hatfield proposals showed that the Delegated Investing in Health Decision was not set in stone. The passage at paragraph 12 of the report of Mr Law showed that the Board had before it whether to make a decision to consolidate acute services at Watford, with accompanying arrangements on which 2 options had been identified. It was not the case that centralisation at Watford was already a done deal. Recommendation b. in paragraph 47 of the report made it clear that the Board was being asked to decide to centralise acute services at Watford. The defendant could have said, “While the Delegated Investing in Health Decision envisages that we should proceed to centralise acute services at Watford, nevertheless we would like to rethink.” The Delegated Investing in Health Decision was in reality no more than a decision as to what the vision for the future should be. The suggestion advanced in these proceedings by the defendant that it was impossible to depart from the Delegated Investing in Health Decision was a gloss put on the matter by the defendant’s lawyers – the defendant did not in truth think this at the time.[80]Mr Hyam countered that the Delegated Investing in Health Decision had determined what the model of care provision should be. Moreover, it was a decision taken by the SHA and the PCTs. They were responsible for deciding what services to commission. While the defendant had a discretion under the Establishment Order as to what particular services would be provided at any one of the three hospitals named in the Establishment Order, it was not up to the defendant to decide a major strategic issue such as where acute services were to be centralised. That power rested with the PCTs and the SHA, whose job it was to determine what services should be commissioned. The Delegated Investing in Health Decision was a commissioning decision, a decision that the PCT would commission the relevant services from the defendant. Mr Hyam did not produce any specific agreement, but he submitted that the annual service agreements between the PCT and the defendant “must include” the Delegated Investing in Health Decision. The Healthy Future PCD was consulting about options 1 and 2. There had been no challenge to the decision of the OSC to recommend that the procedure should not include an option of centralising acute services at Hemel Hempstead. Mr Hyam relied on numerous occasions when the defendant had made it clear that it did not intend to revisit centralisation of acute services at Watford – notably in the Healthy Future PCD and in the report of Mr Law. Mr Law and others had made it clear that cost and affordability were adverse factors, and he had also made clear his view that this was a reason for the OSC’s recommendation. More generally, it was not open to the defendant unilaterally to implement an option which had been excluded by the Delegated Investing in Health Decision.[81]In reply Mr Wolfe submitted that lack of power to act unilaterally did not mean that the possibility of centralising acute services at Hemel Hempstead was outside the scope of consultation. The claimants did not say that centralisation at Hemel Hempstead was required to be included in the Healthy Future PCD as a specific option. Their challenge was to what the defendant did in the light of the consultation responses. The defendant had been consulting in the context of the Delegated Investing in Health Decision, but was not constrained by it. The claimants did not say that there was an obligation on the defendant at once to adopt the Hemel Hempstead option. There was nothing which precluded feeding in the result of consultation to other NHS bodies – indeed the Acute Services Review provided the opportunity to do just that.[82]I find the claimant’s arguments on this issue compelling. The defendant, for its own reasons, wanted to move ahead earlier than had previously been envisaged with plans to centralise acute services at Watford and consequently wanted to make alterations in the services to be provided at Hemel Hempstead and St.Albans. The fact that the defendant investigated whether centralisation of acute services at Hemel Hempstead might be cheaper than doing so at Watford shows that the defendant did not regard the Delegated Investing in Health Decision as written in stone.[83]Question 1 of the questions for the citizen’s juries asked about something which was a cornerstone of the Delegated Investing in Health Decision, whether it would be better for emergency care to be consolidated at a single site. If the principle of whether the consolidation should be done at all was part of the consultation, then it is difficult to see how the location where such consolidation would take place was not equally something within the scope of the consultation. In both the questionnaire accompanying the Healthy Future PCD and that given to members of the citizens’ juries, questions 2 and 3 provided the opportunity to comment on the proposal to centralise acute services at Watford.[84]The recommendation of the OSC did not change this. A decision had to be taken as to what specific options should be put forward in the Healthy Future PCD. As the claimants recognise, there can be no complaint about the recommendation that centralisation of acute services at Hemel Hempstead should not be put forward as a specific option. It does not matter what the reasons for this were. Despite what was said in Ms Shaw’s letter to Mrs Gunson, the fact that the consultation was about bringing forward specific aspects of the plans envisaged by the Delegated Investing in Health Decision inevitably entailed that the consultation was about all those matters which were to be brought forward. Although I was not shown a decision by the defendant in which it adopted the Delegated Investing in Health Decision, I am quite prepared to assume that such a decision was taken in 2003. Such a decision would not have required separate consultation by the defendant, for it could only have been a decision to agree to the model for the future which the Delegated Investing in Health Decision envisaged. Now concrete steps were to be taken to bring what was envisaged to fruition. Board members of the defendant may or may not have been right to rephrase Mr Law’s recommendation b. That did not change the fact that the defendant took a decision on, and had been consulting about, whether to bring forward the centralisation of acute services at Watford as well as the two specific options as to what should happen in the light of such centralisation. I agree with Mr Wolfe’s observation that the suggestions now made to the effect that the Delegated Investing Health Decision limited the scope of consultation are no more than a gloss which has been advanced after the event. At the time, if a consultee had identified a previously unknown factor which showed that centralisation of acute services at Hemel Hempstead would be cheaper than at Watford, then I have no doubt that Mr Law would have urged the Board not to proceed with the proposal in the Healthy Future PCD, and as a matter of common sense the Board itself would have been very unlikely to do so.

Issue B: Were the procedures unfair?

[85]Mr Wolfe submitted that the use of citizens’ juries gave rise to new legal questions, for example as to what information must be provided to jury members and, and how. In the present case the “detailed information pack” was only provided on the day of the jury sessions, and did not contain material setting out objections to the defendant’s proposals. The witness evidence was entirely in support of the defendant’s proposals, all witnesses being employed by the defendant.[86]I decline the invitation to treat the use of citizen’s juries as something that gives rise to new legal questions. The applicable legal principles are those set out earlier in this judgment. Whether a particular process is unfair is likely to be highly fact sensitive. In the present case, no doubt the information supplied as part of the information packs for members of the citizen’s jury could have been more extensive. Any lack of information, however, did not stop jury members from making trenchant comments about the advisability or otherwise of centralising acute services at Watford rather than Hemel Hempstead. There was a genuine invitation to give advice. Sufficient reasons were provided to allow those consulted to give intelligent consideration and an intelligent response. For these reasons, which are essentially those advanced by Mr Hyam on behalf of the defendant, I see no foundation for the claimants’ criticisms of the process prior to the reporting of the outcome of consultation to the Board.

Issue C: consideration of the outcome of consultation

[87]On this issue there were two strands to Mr Wolfe’s arguments. The first strand involved a sustained attack on the November 2006 report, in particular as to the sections dealing with the citizen’s juries. The second strand involved a submission that the Board treated as invalid, or had no proper analysis of, comments which urged centralisation of acute services at Hemel Hempstead rather than at Watford. For the most part, the first strand drew on the October 2006 report and stressed those matters which are found in that report and were not included in the November 2006 report, the latter being the only report from Professor Underwood seen by the Board. In addition, however, the claimants contended that the October 2006 document gave a false picture of the deliberations of jury B. Three members of that jury, Mr Tom Bloch, Mr Richard Jameson, and Mr Stan Alderton, have filed statements to the effect that jury B decided that emergency and acute services should remain at Hemel Hempstead with elective care at St Albans, and that jury B rejected the defendant’s proposal to centralise acute services at Watford. I am sure that these three individuals have honestly described their recollections of the jury discussion. However, neither of them suggests that the question whether acute services should remain at Hemel Hempstead was actually put to a vote. I am sure that there was forceful discussion of this question, with strong views being put forward and perhaps little express dissent. Those who were in the Hemel Hempstead camp may well have drawn the inference that they had the support of other members of the jury, but I do not consider that any such inference on their part was so strong as to warrant a conclusion that Professor Underwood’s October 2006 report, reflecting the notes kept by the rapporteurs, was substantially inaccurate. Indeed, that report set out verbatim many of the observations supporting the centralisation of acute services at Hemel Hempstead.[88]A sustained attack was mounted by Mr Wolfe to the effect that the November 2006 report crucially failed to draw to the attention of the Board key matters arising from the consultation process. At paragraph 58 of his skeleton argument Mr Wolfe identified 7 respects in which complaints and concerns raised by members of the citizen’s juries were not passed on to the Board:(1) The October report explained that 36% of Jury A and 60% of Jury B rated the information pack as average or poor”(2) The October report explained that Jury B thought that the first question they were asked was “a leading question. They also thought that it would have been better to have a broader selection of questions.”(3) The October report explained that Jury A stated that they were “unable” to answer the second question as “they were not the ones to know that answer.” Jury B agreed, stating that “this question was unfair as they were not knowledgeable about the Trust’s finances to come up with solutions that will be “equally cost-effective”.”(4) While the November report contained the anodyne comment that Jury members had asked for “improvements to parking,” the October report painted a different picture, with Jury A stating that “Parking at Watford is horrendous.”(5) While the November report commented that Jury members had suggested “improvements to public transport access by road (especially to Watford Hospital)”, that also downplayed the Jury comments in the October report, with Jury B there reported as stating that “the witnesses seem to skirt around the issue of transport” and “the panel is ducking the issue of physical access to the hospital sites.” Jury B did not merely “suggest” an improvement, they asked for “evidence that something was being done about the transport issue.”(6) While the November report stated that Jury members had suggested “properly educating the public,” the comments in the October report went further, with Jury B stating that “there is confusion about which services will be where” and that “people will waste their time going to the wrong hospital because they don’t know where to go.”(7) Both Juries had also criticised the process, with Jury A stating that “we could have done with more time to read the information pack” and Jury B commenting that the “higher” re-sale value of Hemel Hempstead hospital land was “driving the decisions” and that “there is a foregone conclusion to all this.” Also “two [witnesses] gave words but were light on specifics. Due to limited time I felt that even the very clear speakers could not give us all details necessary for a fully informed decision”.[89]In response Mr Hyam drew attention to the discussion by Professor Underwood of the extensive number of consultation responses which urged keeping acute services at Hemel Hempstead. Comments by such respondents were extensively quoted. So far as the citizens’ juries were concerned, the crucial passage in the November 2006 Report concerning the “verdict summary” was identical to that which Professor Underwood had put in the body of the October 2006 Report. It made it quite plain that jury members identified other options which they would prefer the defendant to consider, and that these included the retention of emergency and acute services at Hemel Hempstead.[90]In reply Mr Wolfe acknowledged that the Board was aware of the issues raised by the citizen juries, but it had not been aware of the nature of their concerns and the strength of their concerns and of the strength of feeling. By saying that detailed findings from each of the citizens’ juries would appear in the appendices, Professor Underwood was recognising that it was important that the board should have such detail findings – yet his report had failed to ensure that this happened. The board had not got a rounded picture.[91]I am not persuaded that the omissions from the November 2006 report had the consequence that it failed to give a fair account of the complaints and concerns of members of the citizens’ juries. I consider that the verdict summary in the October 2006 report gave a fair overview. That overview was repeated in the November 2006 report. Whilst Professor Underwood appears to have contemplated that more detail would be given in appendices to the November 2006 report, the failure to give that detail does not detract from the fact that the overview was fair. Moreover, those parts of the detail which related to the desirability of retaining acute services at Hemel Hempstead were largely along similar lines to the views of those who provided responses in the questionnaire accompanying the Healthy Future PCD. Those views were quoted extensively by Professor Underwood in November 2006 report – see, for example, paragraphs 42 and 44 above.[92]Mr Wolfe also contended that the November 2006 report wrongly gave the impression that the citizens’ juries had involved a balanced and adversarial procedure with considerable time for consideration. He submitted that the board had been given a false picture. He relied upon the fact that the information pack was provided to jury members only on the day, that the only witnesses were employees of the defendant, that the factual material provided to juries was incomplete, and that no one had advanced the case counter to that put the defendant.[93]I cannot accept that these matters involved any overall unfairness to the claimants. For the reasons given earlier, on the crucial question of whether acute services should be centralised at Watford, the November 2006 report gave a fair overview of the outcome of the citizens’ juries process. I am not persuaded that the omissions identified by Mr Wolfe had any significant effect on the weight that the board would be likely to give to the outcome of the citizens’ juries’ process. Even if it did, however, the outcome of the process had been described fairly, including the wish of jury members to retain acute services at Hemel Hempstead, and according the giving of undue weight to the citizens’ juries’ process would not have materially affected the position.[94]The same reasoning applies to a subsidiary complaint of Mr Wolfe that the November 2006 report was flawed in the way in which it stressed the difference between “qualitative” and “quantitative” responses. Those terms are explained by Professor Underwood in his witness statement, quoted earlier in this judgment. The use of those terms in his November 2006 report is entirely consistent with the definitions given in his witness statement. I see no reason to think that board members were misled into giving undue weight to qualitative responses. Even if they did, then to the extent that such responses included the outcome of the citizens’ juries’ process, that outcome was described fairly.[95]The final submission under this head was the strand of argument suggesting that the board rejected as invalid, or lacked any proper analysis of, responses which were inconsistent with centralisation of acute services at Watford. I can detect no evidential foundation for the argument that such responses were treated as invalid. Professor Underwood’s November 2006 report gave a detailed description of these responses. There were no suggestions by him that they should be ignored. Indeed, as noted earlier, Mr Wolfe accepted that the suggestions now put forward on behalf of the defendant that the consultation was limited by the Delegated Investment in Health Decision are no more than a gloss put upon matters after the event.[96]Nor can I accept the argument that the board’s decision was flawed by reason of a lack of proper analysis of those comments which supported centralisation at Hemel Hempstead. Mr Law set out relevant factors in paragraphs 24 and 38 of his report, and at Appendix F to his report. This was reinforced by the comments recorded in the minutes as having been made at the board meeting by him and other members of the executive.[97]More generally in relation to this head of challenge, it seems to me appropriate to look at the matter in the round. The detailed account of consultation given by Professor Underwood in the November 2006 report, the account of the history and analysis of particular factors in Mr Law’s report, and the oral presentations made to the board (see paragraphs 62-68 above), demonstrate compliance with the DoH policy guidance. I am satisfied that the board had a receptive mind, that there was a genuine receipt of the advice which emerged from the consultation process, and that the product of consultation was conscientiously taken into account.[98]For all these reasons I reject this head of challenge.

Issue D: Developments at Hatfield

[99]I assume for the purposes of argument – although Mr Hyam expressed reservations – that at the time of the Healthy Future Decision it was clear to the defendant that the proposal for a new hospital at Hatfield would not go ahead. Mr Wolfe drew attention to the response of August 2005, which had said that centralisation of acute services at Watford was predicated upon the new hospital being built at Hatfield. The Investing in Health PCD had made it clear that the two went in hand in hand. In these circumstances it was submitted that the abandonment of the proposals for the new hospital at Hatfield completely undermined the assumption that the Delegated Investing in Health Decision continued to require that the defendant proceed with the centralisation of acute services at Watford. Moreover, the plan to centralise at Watford had been developed in conjunction with the planned hospital at Hatfield – in the respect the Investing in Health PCD had involved consideration of a carefully crafted package of interacting elements.[100]I am not persuaded by this argument. For the reasons given under Issue A, despite the Delegated Investing in Health Decision, I do not consider that the defendant regarded the location at which acute services would be centralised as outside the scope of consultation. It is true that the Delegated Investing in Health Decision envisaged that in conjunction with centralisation of acute services at Watford there would be a new major acute hospital at Hatfield. That hospital would serve a catchment area which was for the most part some distance from Watford and Hemel Hempstead. The board of the defendant had before it information about the likely substitute arrangements which would be made to provide acute services at a location near Hatfield. Mr Law pointed out that the consequence could be beneficial for the proposals which the defendant had in mind. The claimants did not suggest any basis for faulting that conclusion. As to the “carefully crafted package”, it was recognised by the relevant NHS bodies that further consultation would be needed if plans for Hatfield were abandoned. The defendant had to make a judgment whether the decision-making process following that further consultation would significantly impact on its proposals. The whole tenor of the advice of Mr Law was that it would not, and it is to be inferred that the board accepted that advice. The present claimants have not identified any specific factor showing that abandonment of the proposal for a new hospital at Hatfield in some way vitiated the financial and clinical case for centralisation of acute services at Watford. In these circumstances it seems to me that this head of challenge cannot succeed.

Issues E and F: Lateness and prematurity

[101]In the light of the conclusions that I have reached on issues B, C and D, the defendant’s contentions about lateness and prematurity do not need to be resolved. I can deal with them very briefly. I see no reason to think that the present challenge is too late. The challenge is concerned with the decision taken by the defendant in the light of consultation on the Healthy Future PCD. For the reasons I have given when dealing with issue A, the scope of that consultation included the centralisation of acute services at Watford. If the claimant’s substantive contentions had been sound, they would not have been too late. As to the suggested prematurity, I do not think it possible to say that the challenge has been overtaken by events. The fact that the Acute Services Review is underway is no reason to deprive the claimants of any ground of challenge which would otherwise be legally sound.

Issue G: Relief

[102]This issue, too, does not now need to be resolved. I observe that if there had been substantial unfairness in the consultation process then the precise form of relief might have required careful consideration. It would only be in exceptional circumstances that the court would, as a matter of discretion, deprive the claimants of relief, and I am by no means persuaded that such exceptional circumstances exist in the present case.

Applications as to evidence and disclosure

[103]The defendant sought permission on the first day of the hearing to adduce a further statement by Mr Law dealing with the factors that had influenced the OSC in making its recommendation in June 2006. I refused permission to rely on the proposed further statement. It seemed to me at the time that the point was unlikely to be of more than marginal significance. I have concluded earlier in this judgment that the reasons for the OSC’s recommendation are not material to the legal arguments in the present case. The contention of the claimants that the OSC’s only reason was incompatibility with the Delegated Investment in Health Decision had been made clear for some time, and if the defendant had wished to lodge a witness statement challenging this, then that should not have been left until the first day of the hearing at a time when the claimants would have little if any opportunity to investigate the position.[104]In the course of his submissions in reply, Mr Wolfe sought to rely upon a letter from Ms Anne Walker, chief executive of the West Hertfordshire Primary Care Trust and East and North Hertfordshire Primary Care Trust. The letter dealt, among other things, with her understanding of what it was that the defendant had consulted on as part of the Healthy Future PCD. I refused permission to introduce this letter into evidence. It seemed to me that the letter was of marginal, if any, relevance. It gave no explanation of why Ms Walker held the view that she expressed. The letter in question had been in the possession of the claimants for some time. It would have been unfair to the defendant to have allowed the claimant to rely on this letter, at a stage when the defendant had no opportunity to investigate the matter with Ms Walker and lodge any evidence in the rebuttal.[105]At an early stage in these proceedings the claimants sought disclosure of documents dealing with the role of Clear. The application was not determined prior to the hearing before me. When Mr Wolfe mentioned it in the course of his oral submissions, I indicated that I saw little merit in the application. I consider that the crucial question in relation to Clear is whether what it actually did had any unfair consequence so far as the fairness of consultation was concerned. For that purpose it is necessary to examine what actually happened. It does not seem to me that documents passing between Clear and the defendant and dealing with what role it was envisaged that Clear would undertake would be likely to have any significant bearing on the real questions at issue.

Conclusion

[106]On the three crucial issues I have found against the claimants. The procedures adopted by the defendant prior to the stage when the outcome of consultation was reported to the board were fair. Neither the reporting of that consultation, nor its consideration, treated as invalid those consultation responses which urged that acute services be retained at Hemel Hempstead. Both the reporting of the outcome of consultation and the consideration of that outcome were fair. There is no substance in the assertion that developments in relation to Hatfield vitiated the decision of the defendant to proceed with centralisation of acute services at Watford. In those circumstances this application for judicial review must be dismissed.

Cited in 1 later judgment