“…where a proposed service change spans more than one PCT, they will need to agree a process of joint consultation. The Board of each will need to formally delegate responsibility to a Joint Committee, which would act as a single entity. Following consultation the Joint PCT Committee will be responsible for making the final decision on behalf of the PCTs for which it is acting.”
“108 It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. 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 (R v Brent London Borough Council ex parte Gunning(1985) 84 LGR 168 )… 112...It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absence and statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation although it might by quite onerous, goes no further than this.”
“68. What needs to be published about the proposal is very much a matter for the judgment of the person carrying out the consultation to whose decision the courts will accord a very broad discretion…But, in my judgment, sufficient information to enable an intelligible response requires the consultee to know not just what the proposal is in whatever detail is necessary, but also the factors likely to be of substantial importance to the decision, or the basis on which the decision is likely to be taken… 70...: a flawed consultation exercise is not always so procedurally unfair as to be unlawful; R (Greenpeace) v Secretary of State for Trade and Industry [2007]Env LR 29, Sullivan J…the true test is whether the consultation process was so unfair that it was unlawful…”
“.…(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects…(5) Fairness will very often require that a person who may be adversely be affected by the decision will have an opportunity to make representations on his own behalf either before the decision has taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weight against his interest fairness will very often require that he is informed of the gist of the case which he has to answer... The respondents acknowledge that it is not enough for them to persuade the court that some procedure other than the one adopted by the decision maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made…”
“What is fair procedure is to be judged not in the light of constitutional fiction…but in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached…”
“ 26. The mere fact that information is “significant” does not mean that fairness necessarily requires its disclosure to consultees…nevertheless the degree of significance of the undisclosed material is obviously a highly material factor. 27. What fairness requires depends on the context and the particular circumstances; see for example, R v Secretary of State for Education, ex-parte M[1996] ELR 162 , at pp. 20062007, where Simon Brown LJ emphasised the need to avoid a mechanistic approach to the requirements of consultation… 30. …The fact that the material in question comes from independent experts is plainly relevant to the overall assessment, but it was a combination of factors – including the requirement of a high degree of fairness…the crucial nature of the advice, the lack of good reason for non-disclosure, and the impact on the applicants- which led to what was on the facts a fairly obvious conclusion… 65…even if one accepts the possibility that release of the fully executable version would add two to three months to the appraisal process, that has to be viewed in the context of an already lengthy process…I do not think that either the additional time or the additional cost to NICE should weigh heavily in the balance in deciding whether fairness requires release of the fully executable version. If fairness otherwise requires release of the fully executable version, the court should in my view be very slow to allow administrative consideration of this kind to stand in the way of its release. 66…procedural fairness does require release of the fully executable version of the model. It is true that there is already a remarkable degree of disclosure and of transparency in the consultation process; but that cuts both ways, because it also serves to underline the nature and importance of the exercise being carried out. The refusal to release the fully executable version of the model stands out as one exception to the principle of openness and transparency that NICE has acknowledged as appropriate in this context. It does place consultees…at a significant disadvantage in challenging the reliability of the model. In that respect it limits their ability to make an intelligent response in something that is central to the appraisal process…”
“…what fairness demands is dependent on the context of the decision. The decision in the present case does not impact on personal liberty, a person’s home, the use which a property owner may make of his property or the right to conduct a business. Its context is the regulation by a statutory body of one aspect of the process charged by a private monopoly supplier to its customers…the ultimate issue is not the provision or non provision of a service. It is simply the charge that may be levied by the airports per passenger [73] This puts the decision of the CAA at the “soft” end of the spectrum…fairness should reflect the context as I have described it. It is for this reason that I reject Mr Béar’s submission that the present case is on all fours with Eisai where the regulatory decision was effectively as to whether or not the company should be enabled to market their drug within the NHS. I see that as a significantly more intrusive decision which is more likely to attract a higher level of procedural fairness…”
“a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise;… the person whose interests are likely to be affected does not have to given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance…nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit unconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information…”
“2. Evaluation process and scoring Evaluation process The evidence you supply in this exercise will be assessed as part of the evaluation process we will undertake, and will therefore ultimately inform the final recommendation. The entire evaluation process has 2 discrete stages – Assessment Evaluation and Configuration Evaluation. This process will fulfil the first stage of the Assessment Evaluation. The second stage of the Assessment Evaluation will be visits by the Assessment Panel to each centre… for one day in order to review the current service against the criteria specified in the self-assessment. The visit will give the Panel the opportunity to meet all members of the team, to see the service in operation, and to gain assurance against all reported development opportunities in the self-assessment document… It should be noted that the criteria and scoring process for the Configuration Evaluation have not yet been determined. This will be communicated to all stakeholders in due course. However, the criteria and scoring for the Configuration Evaluation is separate from the Assessment Evaluation. The information supplied in the assessment stage of the process will not have any direct bearing on the scoring of the configuration evaluation process.” …Scoring Scores will be allocated against each criterion, which will come together as a final score for each centre. The scoring process will take place as follows: Before the assessment visit, each member of the Panel will score these self assessment submissions using the criteria detailed below. An assessment of the financial viability of the proposals will be conducted by the NSC Team and supplied to the Panel for their consideration, alongside the completed self assessments. Subsequently, during the assessment visits, the first stage scores will be validated by each member of the assessment panel, as a result of what they see, hear and observe during the day. The scores will then be cross checked between all panel members at the end of each visit, to ensure consistency and rationality. Feedback will be given to each individual centre by letter to the Chief Executive when all assessment visits to all centres have concluded (July 2010). Individual scores for each centre will help identify the configuration options, which will then be tested against criteria such as ease of access, affordability and deliverability, and risks of reconfiguration. The exact scoring mechanism for this stage has yet to be determined. For the Self Assessment Evaluation Stage, each question within the 9 self assessment criteria will be scored individually, as indicated below: Evaluation process …Scoring 1. Inadequate (no evidence to assure panel members) 2. Poor (limited evidence supplied) 3. Acceptable (evidence supplied is adequate but some questions remain unanswered or incomplete) 4. Good (evidence supplied is good, and the panel are assured that the centre has a good grasp of the issues) 5. Excellent (evidence is exemplary) Each question within that criterion will then be weighted according to the stated multiplier, in order to reach a final score for each question. The sum of these final scores will be the total score for that criteria. The total scores for each criterion will come together as a final score for each centre… 3. How the Criteria for Self Assessment were derived The criteria that this template asks for evidence against are as follows: 1. Leadership and Strategic Vision 2. Strength of Network 3. Staffing and Activity 4. Independent Services 5. Facilities and Capacity 6. Age Appropriate Are 7. Information and Choice 8. Excellence of Care 9. Deliverability and Achievability Criteria 1 and 9 are derived from the need to review the strength of the organisation, in terms of its future sustainability and ability to ensure continuous improvement. Criteria 2-8 as derived from the full designation standards document, which is detailed at Appendix 1. The designation standards document describes the proposed future model of care for Paediatric Cardiac Surgery Services. The standards will, in effect, be used for two purposes: As a tool for assessment A number of the standards are “core requirements” in order to pass the assessment evaluation stage of the process, and to be able to move forward to the configuration evaluation. These are represented by criteria 2 to 8. As a commissioning service specification Once the reconfiguration is complete, and centres are designated, they will be expected not only to have the core requirements in place, but also to demonstrate to commissioners how they will achieve the standards, within timescales specified. The standards document will therefore be used as an ongoing commissioning service specification which will be managed through local performance management processes.”
“We interrogated the centres on the information they had provided to us, to see what the story was behind the figures and data provided”. (Witness Statement, Professor Sir Ian Kennedy). The statement continues: “…Using the evidence that we had been given and had gathered, the Independent Panel members assessed the centres current performance in meeting the Standards and the robustness and achievability of the centres’ development plans for meeting the Standards, if they were not currently met…We were as interested in the centres’ ability to meet them in the future, and the realism and feasibility of their ambitions in this respect…Each sub-score constituted a judgment on a number of factors, and the views of the different experts on the Independent Panel – drawing from their own experience - on those factors. The scores were composite of these factors…”
“Dr Carroll requested the Committee be given access to the subcomponents of the panel’s original scorings. Mr Glyde said a summary report had been offered to members at a previous meeting but not taken up by members. Ms Claire stated that she did not wish to see the detail: she believed that the expert’s interpretation was authoritative. Sir Ian Kennedy highlighted the risk of judicial review; the process was undermined if data was provided when experts had been appointed to make a judgment. Ms Llewellyn shared Sir Ian Kennedy’s concerns. Asked if the detail was disclosable under the Freedom of Information Act, Mr Glyde said he believed that it would be once the process was concluded. Ms Christie suggested that the summary report of key findings from each centre be provided by the panel Sir McKay endorsed Ms Christie’s suggestion and advised the Committee to be disciplined in resisting requesting further detail once the summary was provided.”
“Areas of compliance The Network is currently very strong and the trust has good relationships with all key stakeholders All critically interdependent services are currently co-located The PICU currently meets core PICU standards and there are two separate rotas for anaesthetists The Trust has good facilities that can sustain an increase in activity to 400 procedures per year The Trust had implemented best practice from Ohio Areas of weaker compliance The Trust did not demonstrate innovative working practices The Trust has no plans to use telemedicine for paediatric cardiac surgery Waiting lists at the trust are long There are concerns about future staffing capacity in PICU and theatres The trust has no transition nurse The Trust did not sufficiently describe an academic research portfolio”
“Areas of compliance The Trust has a strong record of delivering high quality services and had a strong clinical governance structure The Trust demonstrated highly innovative work, especially with regard to the use of Berlin Hearts. It was the first centre to set up a cardiac genetics database. The estates strategy was strong All services are co-located as per the standards Areas of weaker compliance Because of the small and specialist nature of the PICU it has insufficient staffing levels to maintain a consultant led service There was limited information about how the trust would work with other hospitals in the network, including hos the IT strategy and transition would be applied within the network, and how it would resolve the concerns working with Carlisle. There is no clinical psychologist or Children’s Cardiac Specialist Nurse”
“In broad terms our concerns relate to Matters of factual accuracy and consistency. Matters of scope, context and approach in the review and with the options appraisal. 3.1 Matters of factual accuracy and consistency The final report received from Professor Ian Kennedy’s Review in January 2011 was different from the draft letter about the report that the Trust had commented on in 2010 and contained a number of inaccuracies around the PICU configuration and specialist nurse posts. Although the Trust had responded to the inaccuracies in the draft letter, a number of them were not corrected in the final report from Sir Ian Kennedy. There was not an opportunity to correct the final report before this information was placed in the public domain, and indeed members of the Safe and Sustainable team have repeated this information in the media. Despite requests, the details of Sir Ian Kennedy’s expert panel’s scores for Leeds have not been shared with us nor have the errors been rectified. The Pre Consultation Business Case (PCBC) and the final consultation document attempt to describe the process and assumptions that the JCPCT used to shortlist the final four options that had been put to the public…”
“…it was not material to the production of the consultation document, nor will it be material to the decision making process. The JCPCT’s commitment to release this information once it has made its final decision is, in our view, reasonable.”
“[A]lthough the scoring process has consistently highlighted option B as the highest scoring option the JCPCT should not regard the scoring process as determinative. Rather the JCPCT’s decision should be based on a consideration of all of the available evidence in the round, including the evidence for and against alternative options”
“There were two key reasons for the JCPCT favouring option B over option G. The issues were quite finely balanced, but the JCPCT was satisfied that the differences were conclusive. Firstly, and as demonstrated by the scoring, option B was the higher scoring option for quality. The second reason related to nationally commissioned services (NCS) and in particular the risks around relocating cardiothoracic transplant services, which would be needed if cardiac surgery services at Newcastle ceased”
“the importance of retaining a safe transplant service was such that the scoring process carried out by the JCPCT (and the earlier quality assessment) would have needed to show a material difference in favour of option G, or there would have had to be another significant countervailing argument in favour of option G in order to counterbalance the risk. Again the issue of transplant was not itself determinative (that is, we did not decide on the basis of the issues relating to Birmingham’s ability to undertake transplants) but it was a significant consideration”
“Members had heard that financially there was little to discriminate between options G and B and that they were the best value for money. While there were many issues to be addressed in implementation, there was no showstopper to suggest that either option B and G could not work…”
“See appendix one outlining the Director of Finance’s initial estimate of resources required to meet the quality standards and to increase activity.”
“the quality of care provided was the most frequently mentioned issues for respondents discussing either specific hospitals or the options more generally. In fact, quality of care featured heavily throughout the consultation responses, as each of the questions posed in response form and in the letters and emailed requests submitted. There was a strong belief amongst many that quality should be the deciding factor in service planning.”
“Mr Buck noted that the proposed scores for B and G were three and two respectively and the only difference was the presence of Leeds. Miss Banks confirmed this; Leeds had scored less well than Newcastle in the Kennedy Assessment which was the reason for this result. Mr Glyde explained that the report was in the public domain but the Committee had decided not to consider the sub-scores so it could not respond as to the specific strengths and weaknesses in each trust. For that reason, KPMG had focused on the overall score, which had placed Newcastle higher than Leeds in terms of overall compliance with standards. However, the next agenda item would explore the submissions put to the Committee of the relevant strengths of its service compared to Newcastle.”
‘it is appropriate to leave this to the experts’, failed to reflect the significance of the subscores in that they provided the basis of what ultimately was the difference of one point in the critical ‘Quality’ scoring as between Leeds and Newcastle. If the JCPCT wished for clarification it could have sought the assistance of the Kennedy Panel. It follows, and I so find, that the sub-scores were a material consideration. Accordingly I find that the claimant succeeds upon its challenge upon Ground Two. Annexe One A.Witness complaint about KP assessment of Leeds B.Communication of KP assessment during the Review C.Was the issue addressed during the Review? D.Claimant’s response to D’s submission Leadership and Strategic Vision KP was wrong to criticise the Trust’s strategy as not giving sufficient emphasis to paediatric cardiac surgery: Hunter §21 [5/13/213] Feedback letter [8/9/79] Kennedy Panel Report December 2010 [1/8/201] Not raised by Trust (see Hunter w/s §21 [5/13/214] C scored 3/5. ‘Acceptable’