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When
do Public Bodies have to Consult the Public before Taking Action?
It has recently held in judicial review proceedings in R (Morris)
v Trafford Healthcare NHS Trust [2006] EWHC 2334 (Admin) 22/09/2006
that the Trafford Healthcare NHS Trust had breached its statutory
duty to consult members of the public before closing the Altrincham
General Hospital. The case raises exciting new issues in relation
to when (1) specific statutory duties; and (2) a rapidly developing
public law duties; will require public law bodies to consult members
of the public before taking decisions.
The Health and Social Care Act 2001 (‘the Act') governs NHS Trust's:
(1) planning and provision of health services; (2) ability to change
the way health services are provided; and (3) decisions which affect
the operation of health services.
Crucially, section 11(1) of the Act provides that it is the duty
of every NHS Trust to make arrangements so that persons to whom
health services are provided are either directly (or through representatives)
involved in, and consulted upon, the three areas above.
In R (Morris) v Trafford Healthcare NHS Trust (above) the decision
to close two inpatient wards at the hospital involved no public
consultation. Instead the Trust justified the closure on the basis
that it was urgently necessary on the grounds of "clinical safety".
This may seem like a remarkable stance to take in light of the fact
that the Act does not provide for any safety exception to the need
for consultation. However, Mr. Justice Hodge accepted that the clinical
safety exception could in theory sensibly override the need for
consultation. This is in accordance with the Department of Health's
July 2003 guidance entitled: "Overview and Scrutiny of Health –
Guidance" and which takes the view that consultation will not be
necessary where a Trust believes that "a decision has to be taken
on an issue immediately because of a risk to the safety or welfare
of patients of staff." It goes on to say that: "These circumstances
should be exceptional." The problem for the defendant Trust in
this case was that Mr. Justice Hodge did not accept that there was
a risk to safety and held that the expert who recommended closure:
"was misinformed as to the function of the wards. His recommendation
that the wards should be closed was based on a misunderstanding
that they were being used for acute cases. That was never what they
were intended for." Interestingly, the difficulties in judicial
review of only being able to challenge a public body's decision
on limited Wednesbury grounds did not arise because the decision
in this case was so plainly flawed. In short, as Lord Hutton said
in Alconbury Ltd v. Secretary of State for Transport and the Regions
[2001] 2 All ER 929 HL the limits of judicial review are that: "…..a
court does not decide whether an administrative decision was well-founded
in substance".
The R (Morris) v Trafford Healthcare NHS Trust case once again raises
the question as to:
(1) how easily a duty to consult on important decisions affecting
the distribution of the taxpayers' money can be put aside by public
bodies; (2) to what standard consultation should occur.
In recent years the case law has developed to new levels in the
Administrative Court recognising even a non-statutory duty to consult.
The public good can in some circumstances be clearly served by having
public consultation in that firstly, it ensures that the public
body is able to weigh any conflicting public interests; and secondly,
it ensures that those with the right to make representations have
had those representations taken into account. But to what extent
should the court be deciding when consultation is appropriate or
necessary?
Decision to consult
The decision as to whether to consult at all, unless there is a
mandatory statutory requirement to do so, is very much a matter
for the public body. In the grandfather of this lineage of caselaw,
R. v. Secretary of State, ex parte Greenpeace [1994] 4 All ER 352,
it was held (in the context of public inquiries) that: "Parliament……gave
the Secretary of State a discretion as to whether or not to hold
a public inquiry. Provided the Secretary of State applied his mind
genuinely and rationally to the issue of whether or not to hold
a public inquiry, his decision cannot be impugned. " Consultation
at a formative stage
However, once the decision to consult has been made it has to be
done properly. In R (On the application of the Partingdale Lane
Residents' Association) v Barnet London Borough Council [2003]
EWHC 947 Admin it was held that consultation had to occur when a
proposal was at a "formative stage" and the decision-maker had
to have an open mind on the issue of principle involved.
Conclusions
New approaches to challenging decsions about consulation will become
increasingly necessary where the funds that public bodies distribute
on the taxpayer's behalf become increasingly scarce.
Author:
Ian Mann is a Public and Employment Law Barrister at 13 King’s Bench
Walk, Temple www.employment-barrister-uk.com
and http://www.13kbw.co.uk
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