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High Court Rules on New Bed Closure Test and Split Consultation

In December 2017 a consortium of local authorities and a campaign group, Keep the Horton General, argued their challenge to the CCG’s consultation process which resulted in a decision to downgrade part of the Horton General Hospital’s provision and permanently close a number of beds.

The challengers argued principally that:

1) To split the consultation into two phases was unlawful because of interdependencies between the matters consulted on in Phase I and Phase II.  For example, Phase I consulted on the permanent closure of hospital beds (as a means of combatting bed blocking) but Phase II is due to consult on the issue of more care within the community.  Similarly, Phase I consulted on the removal of the Special Baby Care Unit, when Phase II is to consult on the retention of a full children's service. 

2) The consultation document was misleading in material respects - presenting contentious matters of opinion as uncontroversial fact: for example that the beds were “no longer needed”.

3) The consultation failed to reflect the a new bed closure test announced by Simon Stevens, Chief Executive of NHS England, on 3 March 2017.

4) The consultation provided insufficient information to the consultees to enable them to provide a meaningful response. 

It was thus argued that the Phase I consultation should be quashed and re-taken together with Phase II, and further that the decisions taken on the back of the alleged flawed consultation should also be quashed.

The High Court, Mr Justice Mostyn, in a relatively short judgment delivered just before Christmas (available here), dismissed the challenge.  

It is clear from the judgment that the Judge was not unsympathetic to the concerns expressed by the challengers regarding the interdependencies argument.  However, in the end he found, largely on the basis of evidence filed by the Respondents during the course of the hearing (in the afternoon of the second day, after the Claimants and I.P. had completed their submissions), that the decision to split the consultation was not so unfair as to vitiate the process.  

Insofar as the new bed closure test is concerned (see previous blog post here) the Judge agreed with Keep the Horton General (and contrary to the CCG’s submissions), that the new NHS bed closure test did apply in the present case and that the consultation was flawed in failing to inform the public of the new criteria for closure.  However, he held that there would not have been much redrafting of the consultation had the new test been mentioned and that the public was “de facto substantively consulted about the new test” [43].  Accordingly the omission, described as "regrettable" and “somewhat troubling”, did not render the consultation unfair.

Keep the Horton General is seeking permission to appeal to the Court of Appeal.  It is pursuing arguments relating to interdependencies, the bed closure test representing a change of criterion which was required to be drawn to the public’s attention and a procedural fairness point relating to late provision of evidence by the CCG.

An interesting critique of the judgment by the Consultation Institute (which is a not-for-profit best practice institute) can be found here. 

Samantha Broadfoot QC and Leon Glenister, instructed by Leigh Day Solicitors (Rowan Smith, Rosa Curling) continue to act for the Keep the Horton General.