Flatley, R (On the Application Of) v Hywel Dda University Health Board [2014] EWHC 655 (Admin)

[2014] EWHC 655 (Admin)Case No CO/17298/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Venue Cardiff Civil Justice Centre
2 Park Street
Venue CardiffDate 13/03/14
CF10 1ET
Before
MR JUSTICE HICKINBOTTOM
Between
THE QUEEN ON THE APPLICATION OFClaimantANTHONY JOHN FLATLEYClaimantTHE WELSH MINISTERSDefendantHYWEL DDA UNIVERSITY HEALTH BOARDInterested Party
Nicholas Bowen QC and Conor McCarthy (instructed by NewLaw Solicitors) for ClaimantTim Buley (instructed by the Treasury Solicitor) for Defendant for The Interested Party did not appear and was not representedHearing Hearing date: 7 March 2014
Judgment

Introduction

[1]This claim concerns urgent healthcare facilities provided at the Prince Phillip Hospital, Llanelli (“the Hospital”). The Defendants (“the Welsh Ministers”) are responsible for health services in Wales. The Interested Party Local Health Board (“the LHB”) is responsible for overseeing the provision of health services throughout Carmarthenshire, Ceredigion and Pembrokeshire, including services at the Hospital. The Claimant is a regular user of the Hospital, and the Secretary of an association called Save Our Services Prince Philip Action Network (“SOSPPAN”). There is another body important to this claim, namely the Hywel Dda Community Health Council (“the CHC”), which has a statutory mandate to protect the health care interests of the community served by the LHB in what is a watchdog role. Amongst other things, the LHB has a duty to consult the CHC when considering significant issues relating to health reorganisation in the area; and, in certain circumstances, the CHC can refer proposals of the LHB to the Defendants for review.[2]By way of this claim, the Claimant seeks to challenge the Welsh Ministers’ decision dated 24 September 2013 to replace the Accident and Emergency (“A&E”) Department at the Hospital with an Emergency Nurse Practitioner (“ENP”) led and General Practitioner (“GP”) supported model (“the ENP+GP model”). That decision was taken following a statutory review by the Defendants of LHB proposals, triggered by a CHC referral.

Factual and Procedural Background

[3]Following the transfer of health service functions from the Westminster Government to the National Assembly and thence to the Welsh Ministers, and in exercise of its functions under sections 11 and 12 of the National Health Service (Wales) Act 2006, since 2010 the LHB has been considering options for the re-organisation of public health services in its area. Although, as I understand it, the LHB is further along the path, other Local Health Boards throughout Wales are engaged in a similar process.[4]Following a pre-consultation exercise, in August 2012 the LHB began a formal public consultation based upon a document, “Your Health, Your Future: Consulting Our Communities”. This identified two options for consultation with regard to the A&E facility at the Hospital to replace the traditional service, namely Option A and Option B. Under each, the Hospital would provide a nurse-led local accident centre for minor accidents, but under Option B it would also have an emergency medical admission unit. Neither proposed that there would be doctors on site in the facility, support being provided by doctors stationed at Glangwili Hospital, Carmarthen, by telephone etc. The consultation paper indicated that the LHB preferred Option B.[5]There was considerable opposition to the down-grading of the A&E facility at the Hospital. In particular, although the consultation process resulted in some support for Option B, some consultees (including the doctors at the Hospital) expressed concern about the perceived threat the proposal posed to the integrity and safety of the emergency medical model. However, at a meeting on 15 January 2013, the LHB determined to proceed with Option B.[6]The Claimant lodged a judicial review of that decision (Claim No CO/4383/2013), relying on two broad grounds. First, the LHB’s decision was flawed because the consultation it had performed was legally inadequate, and in contravention of the principles laid down in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 at page 169. Second, the LHB had failed in its duty under section 149 of the Equality Act 2010, and, in particular, it had failed to reach conclusions about the equality impact before taking its decision to proceed with Option B.[7]Permission to proceed was refused on the papers but, at the renewal hearing on 18 July 2013, His Honour Judge Curran QC directed that there be a rolled-up hearing which was set down for November 2013 with a time estimate of three days.[8]However, in the meantime, on 25 February 2013, the CHC referred the LHB’s proposals to the Welsh Ministers, under regulation 27 of the Community Health Councils (Constitution, Membership and Procedures) (Wales) Regulations 2010 (SI 2010 No 288) (“the 2010 Regulations”). This imposes a duty on a Local Health Board in Wales to involve and consult with the relevant Community Health Council in the planning of, changes to and decisions affecting the operation of public health services in its area (regulation 27(1), (2) and (3)). Regulation 27(7) provides:
“In any case where a Council is not satisfied that – (a) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate in relation to content or time allowed; or (b) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate with regard to a Council being consulted at the inception of such a proposal; or (c) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate in relation to the frequency with which a Council is consulted throughout the proposal and decision-making process; … it may report to the Welsh Ministers in writing and the Welsh Ministers may require the [Local Health Board] to carry out such consultation, or further consultation, with a Council as they consider appropriate.”
Regulation 27(9) provides: “In any case where a Council considers that a proposal submitted under paragraphs (1) and (3) by a relevant Local Health Board would not be in the interests of the health service in its district, it may report to the Welsh Ministers in writing and the Welsh Ministers may make a final decision on the proposal and require the relevant Local Health Board to take such action, or desist from taking such action, as the Welsh Ministers may direct.” (a) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate in relation to content or time allowed; or (b) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate with regard to a Council being consulted at the inception of such a proposal; or (c) consultation on any proposal referred to in paragraphs (1), (2) and (3) has been adequate in relation to the frequency with which a Council is consulted throughout the proposal and decision-making process; …[9]In this case, the CHC referred the LHB’s proposals to the Welsh Ministers, under regulation 27(7) and (9).[10]The Minister for Health and Social Services, Dr Mark Drakeford AM, responded on 11 March 2013, requesting the CHC and LHB to engage in further dialogue before he considered a referral. However, on 19 April, the matter was re-referred to him by the CHC.[11]The CHC raised two primary issues. First, it expressed concern that the consultation process had been inadequate, and had in many respects failed to comply with the Gunning principles. The CHC requested that “the whole consultation process, and our concerns about its inadequacy, should be formally reviewed…”. Second, the CHC pressed for a different model involving on-site doctors.[12]In his formal response of 31 May 2013, the Minister agreed to set up a Scrutiny Panel to consider the reference; but indicated that he did not consider the LHB’s consultation process (other than with the CHC itself) to be within his (or, consequently, the Scrutiny Panel’s) remit.[13]The Scrutiny Panel reported to the Minister in September. It recommended an ENP+GP model for the Hospital. The Minister endorsed and followed that recommendation in his decision letter to the CHC dated 24 September 2013. That is, of course, the decision which the Claimant seeks to challenge in this claim.[14]On 25 October 2013, by consent, Wyn Williams J stayed the Claimant’s claim against the LHB pending the issue of this claim and determination of application for permission in it. This claim was issued on 5 December. On 13 February 2014, Nicola Davies J adjourned the application for permission to a hearing, which was set down before me on 7 March. At the end of that hearing, I indicated that I would grant permission to proceed on Grounds A, B and D as identified in the Claimant’s Skeleton Argument for the permission hearing; but refuse it on the other grounds on which the Claimant relied. I said I would hand down my reasons at a later date. In this judgment, I give those reasons.

The Grounds

[15]In his grounds, Mr Nicholas Bowen QC for the Claimant focused on three areas. He submitted that: i) The Scrutiny Panel’s recommendation and the Minister’s decision were based upon a fundamental misunderstanding of the CHC’s wishes in respect of the urgent healthcare services facility at the Hospital, which fatally undermined the decision to which the Minister came (Ground C). ii) The Minister failed to have due regard to the public sector equality needs and requirements set out in section 149 of the Equality Act 2010 (Ground E). iii) The Minister failed to deal lawfully with various issues relating to consultation (Grounds A, B and D).[16]I will deal with these in turn, reminding myself that, at this stage, the hurdle the Claimant must overcome is low. If a ground is arguable, he is entitled to proceed.

Ground C: Error of Fact amounting to an Error of Law

[17]It is now well-established that, where a decision-maker fails to appreciate a fact that is fundamental to a decision, that is a proper ground for judicial review. Mr Bowen submitted that the Minister failed properly to understand the CHC’s proposals for A&E facilities at the Hospital, which amounted to such a significant error of fact that it rendered the Minister’s decision unlawful.[18]His submission went as follows. The CHC wished to have GPs or other fully trained and experienced doctors physically available at the Hospital “24/7”, i.e. on a full-time basis, to lead the facility; but the Scrutiny Panel misunderstood that wish, and thought that CHC indicated satisfaction with a nurse-led facility with doctor support in any form including off-site support. In adopting the Panel’s recommendation, the Minister thus decided that an ENP+GP model should be adopted, but not one which necessarily involved constant presence of doctors at the facility, on the basis of an understanding that the model he decided should go forward was that which the CHC itself supported. That was a fundamental and fatal misunderstanding.[19]As I have indicated, the LHB proposal did not involve doctor presence on site at the facility, but rather was for nurse-led facilities with doctor support in the form of telephone and other electronic links to the Glangwili Hospital in Carmarthen, over 20 miles away. The CHC’s response to that proposal was set out in its initial referral to the Minister, dated 25 February 2013 (paragraph 3, page 20):
“Whilst we accept that a full A&E service is unlikely to be reinstated at [the Hospital] but do believe that, given the population size of this large urban conurbation and its surrounding catchment area, it is unacceptable merely to have the emergency care service provided by nursing staff. Accordingly it is our considered opinion that a fully trained/qualified doctor must be available at the facility at all times, on a 24/7 basis to see and review all emergency arrivals, apart from those who are routed directly to the hospital’s medical admissions unit. Such a doctor would be able to interface with other colleagues across Hywel Dda and signpost patients to the most appropriate setting, whether that is within [the Hospital] or elsewhere. We are aware of an alternative model now being considered and that discussions are underway between the [LHB] and with various stakeholders. We also understand that clinicians within the hospital are opposed to the downgrade plan and should be consulted and their clear opinions taken into account prior to a solution being finalised.”
That was reiterated by the CHC in its further response dated 19 April 2013:
“Our alternative model would therefore suggest that such an urgent care centre at [the Hospital] would be staffed 24/7 by a fully trained GP (with experience in A&E) or by a doctor with relevant skills. Staff would be able to access support and advice when necessary… … [W]e would ask the Minister to review this proposal and ensure that unscheduled care provision in Llanelli is developed to ensure safe and high quality doctor-delivered provision”
. Thus there was no doubt as to CHC’s wishes: contrary to the LHB proposal, it wanted a facility with the constant presence of (i.e. “staffing by”) a doctor.[20]In its report to the Minister, the Scrutiny Panel summarised the technical documents supporting its advice and recommendation. After setting out the current emergency facilities at the Hospital, the “case for change”, the relevant national policy and standards, and the LHB proposal, it proceeds:
“The main counter proposal by the CHC is that the [Emergency Department] should be replaced with an “Urgent Care Centre” that would have 24 hour GP support…. The CHC acknowledged that professional opinion has stated that the current situation was not sustainable. The CHC preferred model was for an “Urgent Care Centre” with ENPs working with doctor support 24/7. The reasons for this model were provided in the referral documents and are noted above.”
[21]In the main report, the Panel said this: “There are two models offered for the care of minor illnesses and minor injury. One is staffed only by [ENPs], the other uses the same ENP model augmented by a GP with special interest in urgent cases (ENP+GP). The ENP+GP model seemingly has been introduced with great success at Singleton Hospital in Swansea. In Singleton they apparently had no problem in recruiting GPs to staff the model….”.[22]Looked at in the context of the report as a whole, although taken literally “ENP+GP” could refer to a model in which the ENPs were supported by a GP at the end of a telephone, that is clearly not what was meant here. The doctors in the model that was considered, and then recommended, by the Panel were to be on site at the Hospital; hence, the references to opportunities for local GPs to train in emergency healthcare, and the lessening of the need for patients to have to travel to (e.g.) Morriston Hospital. It is also instructive that it is recorded that: “The Panel was careful to clarify that the CHC agreed the model of care that has been suggested. They confirmed that they are proposing an acute medical receiving unit and an Urgent Care Centre with ENPs and GPs working 24 hours per day. They agreed this model was not an A&E department”.[23]The Panel’s main recommendation was as follows: “In the Panel’s opinion the development of an [ENP] led and [GP] supported (ENP+GP) model would best serve the people of Llanelli”.[24]Reading the Panel’s report fairly and as a whole, in my view it is clear that the Scrutiny Panel understood CHC’s proposal to have a doctor or doctors constantly present on site at the Hospital, staffing the facility; and supported and recommended it to the Minister in these terms.[25]In his decision letter of 23 September 2013, the Minister, having indicated that he had considered the advice and recommendations of the Scrutiny Panel and being satisfied that the Panel had conducted a comprehensive examination of the LHB proposal supplemented by meetings with both LHB and CHC, agreed its conclusions. Specifically, he indicated satisfaction that the Panel had “taken into account the views of the local community as put forward by the [CHC]”. The Minister clearly and unequivocally endorsed the Scrutiny Panel’s recommendation, in identical terms: “The Minister’s decision is that an [ENP] led and [GP] supported (ENP+GP) model would best serve the people of Llanelli”.[26]In making that decision, on the face of the documents to which I have referred, in my judgment it is not arguable that he misunderstood the CHC’s stance. Indeed, he understood it, and substantially followed it.[27]Although, even if appropriate, it is unnecessary for me to consider ex post facto evidence, the following comes as some comfort to me in my conclusion based on the contemporaneous documents: i) The Minister has confirmed to the Senedd that the emergency facilities at the Hospital will be clinically-led by doctors (Record of Proceedings, 26 November 2013, 12.16). ii) Mr Buley, on instructions, confirmed that, by his decision of 23 September 2013, the Minister intended that the relevant facility at the Hospital would be clinically led by doctors, in the sense that there should be staff doctor’s constant presence at the facility. iii) In a statement dated 6 March 2014, Mr Christopher Wright (the Director of the LHB) confirms the following:
“I can confirm that the service will involve the support and leadership of doctors on a 24/7 basis. I can also confirm that the [LHB] agrees with the view expressed by the Minister that there is no practical difference between “support” and “leadership” in this context. The service will be staffed on a 24/7 basis by fully trained GPs who will have had additional training in emergency care, or another appropriate doctor, to diagnose, stabilise, treat as deemed necessary and determine the most appropriate service needs of the patient and, where necessary, ‘refer on’ elsewhere. The strength of the service will be the close collaboration between the team of [ENPs], GPs and the doctors at [the Hospital]”
. Therefore, even if there were ambiguity in the documents – and I consider there to be none – the Claimant and others have the benefit of that assurance. Of course, the level of service is not cast in stone; but it could not be altered without proper process and consultation with, amongst others, the CHC.[28]For those reasons, I found the first ground to be unarguable.

Ground E: Equality Impact

[29]Mr Bowen submitted that the Scrutiny Panel were not asked to consider equality impact – and did not do so – and thus the Minister (who adopted the Panel’s recommendation and reasoning) had no due regard to the equality impact of his decision, as he is required to do by virtue of the free-standing obligation in section 149 of the Equality Act 2010.[30]However, as Mr Buley stressed, the question of whether the decision-maker has had due regard is one of substance; and it is only if a relevant characteristic may arise in the exercise of a public function that such a characteristic has to be investigated and, if then identified as material, taken into consideration (R (Greenwich Community Law Centre) v Greenwich London Borough Council [2012] EWCA Civ 496 at [30] per Elias LJ). Mr Buley submitted that in this case, equality impact was simply not in issue in relation to the decision. If there is no characteristic that could realistically be engaged by the decision, then a decision-maker does not breach his section 149 obligation by not considering the obligation; and, if someone alleges a breach of a section 149 duty, it is incumbent upon him at least to identify the characteristic(s) which might realistically be said to have been engaged, and how (the Greenwich case at [34]). None had been identified by the Claimant in his pre-action protocol correspondence, Statement of Grounds, Reply or even skeleton argument for the permission hearing.[31]At the hearing, Mr Bowen responded by identifying and relying upon two matters that have or might have an equality impact, to which reference was made by the LHB in its proposal, namely(i) additional transfers and travel with “potential impact on the elderly, disabled, young people and families and low income households”; and(ii) “staff relocations with the potential to affect staff from different equality strands”. However, no one raised any matters of equality impact in respect of the LHB decision; and the CHC expressly stated in its referral to the Minister (at page 28) that it made “no accusations that the LHB has fallen short of any statutory duties relation to the [Equality] Act”. In any event, in relation to the two matters raised by Mr Bowen: i) The additional burden of transfers and travel times to other hospitals arose from the LHB proposal, which would have required more local patients to travel to other hospitals because there would be no doctors on site in the unit at the Hospital. That potential impact does not arise from the model preferred by the Scrutiny Panel and Minister – indeed, that was one main reason for them preferring the ENP+GP model. The Scrutiny Panel report expressly notes that: “The ENP+GP model is likely to lessen the need for transfer…”; and the Minister, in reporting his decision to the Senedd by way of formal statement, confirmed that the decision would mean that 80% of emergency case patients – the current level – would continue to be treated at the Hospital. Therefore, the evidence is that there will be no additional burden of transfers and travel times to other hospitals under the model that the Minister proposes adopting. ii) With regard to staff transfers, the LHB considered that any equality impact could be properly dealt with at implementation stage. There is no evidence that supports the suggestion that any such impact cannot or will not properly be accommodated at that stage.[32]Consequently, the Claimant has not identified any characteristic that might potentially give rise to an equality impact. Certainly, none is otherwise apparent. As a result, I do not consider it is arguable that the Minister, by not addressing himself to any equality impact obligation, breached section 149 of the 2010 Act.[33]Those are the reasons I found this ground too to be unarguable.

Grounds A, B and D: Consultation

[34]Mr Bowen submitted that the Minister failed to deal lawfully with issues relating to consultation.[35]This ground has a number of strands. In determining that the consultation by the LHB (other than with the CHC itself) fell outside his remit, it is said by Mr Bowen that the Minister failed to understand the nature and breadth of his discretion on a reference from the CHC under the regulation 27 of the 2010 Regulations (Ground A); or, alternatively outside those Regulations, he was in any event under an obligation to consider the criticisms made of the LHB procedure and, under the principles set out by Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1065B, to take reasonable steps (including making due enquiries) to enable him to make a properly informed decision (Ground B). Mr Bowen also submits that the Minister’s decision is tainted by the allegedly unlawful decision of the LHB – made unlawful by its failure properly to consult – which cannot, under the principles of R (Shoesmith) v Ofsted [2011] PTSR 1459 or otherwise, be assumed to be lawful. The Minister’s decision, therefore, did not “cure” the defects in the LHB’s decision (Ground D).[36]Mr Buley made powerful submissions as to why these grounds are not good, or even arguable. However, having considered all of the lengthy and thorough submissions by both sides with considerable care, I have concluded that these grounds are arguable. Although some may have more strength than others, they are to an extent interrelated; and, as I indicated at the end of the hearing, I propose giving permission to proceed on the Grounds A, B and D. I should say that, although I consider the grounds arguable in any event, the issues raised concern the relationship between Local Health Boards, Community Health Councils and the Welsh Ministers generally. As I understand it, this is the first claim in which these issues have been raised, and, particularly as the LHB is ahead of most health authorities in Wales in a reorganisation which will eventually affect most or all of Wales, there are in my view important issues of public interest here that should be the subject of full argument and a considered judgment at a substantive hearing in any event.[37]For those reasons, I gave permission to proceed on Grounds A, B and D.

Conclusion

[38]For the reasons given above, at the hearing of 7 March 2014, I refused permission to proceed on Grounds C and E, but granted permission on the Claimant’s other grounds. The claim will now proceed to a substantive hearing on Grounds A, B and D.