R v Worcestershire Health Council, ex parte Kidderminster and District Community Health Council

Regulation 18(1) of the Community Health Councils Regulations 1996 requires consultation only on proposals which a health authority may have under consideration. It does not require formal consultation on every option previously developed or considered during an evaluation process.

An authority may identify and consult on a preferred option, provided its decision remains formative and it is open to representations, alternatives and modifications. Consultation on one proposal necessarily permits opposition to it and suggestions of other courses. R v The North and East Devon Health Authority ex parte Pow [1998] 1 CCLR 280 did not require consultation on every alternative option.

The applicant community health council sought judicial review of the respondent health authority’s decision to adopt option 4 for the reorganisation of emergency medicine and surgery services, including the proposed closure of Kidderminster General Hospital’s Accident and Emergency Department.

The authority had initially developed seven options. It selected option 4 as its preferred option and consulted on that option alone. The applicant argued that regulation 18(1) required consultation on the other options as well, and that the consultation was invalid because the authority’s mind was already made up. The Administrative Court dismissed the application on the merits and, independently, for delay. The renewed application came before the Court of Appeal.

1. Renewed application refused, with costs. The court declined to decide the case on the merits of the proposed service reorganisation. Its concern was the legality of the consultation process.
2. Regulation 18(1) of the Community Health Councils Regulations 1996 applied to proposals which the health authority might have under consideration. The wording did not extend to proposals which the authority had previously considered and rejected. Once the authority had narrowed the seven options to one preferred proposal, it was entitled to consult on that proposal alone.
3. The authority was not required to approach consultation with an entirely open choice between all possible options. It could indicate the course it would seek to adopt, provided it remained willing to reconsider that course in light of the consultation. The consultation process enabled the applicant to oppose option 4, propose alternatives and suggest modifications. The authority’s consultation document and subsequent correspondence sufficiently demonstrated that its mind was not closed.
4. R v The North and East Devon Health Authority ex parte Pow [1998] 1 CCLR 280 was distinguishable. That case concerned an authority which had sought to deny that the ultimately adopted plan was a proposal requiring consultation. It did not establish that every option developed or considered by an authority had to be formally consulted upon.
5. Simon Brown LJ also considered the separate delay issue, but refused the application because the central complaint about regulation 18(1) had no substance. Auld LJ agreed, emphasising that consultation on the preferred option necessarily allowed representations for and against it and proposals for alternatives. Thorpe LJ agreed with both judgments.

• Court of Appeal (Civil Division): The renewed application for permission to challenge the health authority’s decision was refused, with costs.
• Queen’s Bench Division: Collins J initially refused permission on the papers. Turner J subsequently dismissed the application after an inter partes hearing, relying on the construction of regulation 18(1) and, independently, delay.