Smith v North East Derbyshire Primary Care Trust

Where a public body has breached a statutory duty to involve and consult service users, judicial review relief should ordinarily follow unless the authority establishes that the same decision inevitably would have been made. A probability that the outcome would have been unchanged is insufficient.

A body cannot excuse its own consultation duty by suggesting that an affected person could have approached another body after the decision. Later consultation cannot ordinarily cure a defective process where timely consultation might have affected the selection of the preferred provider.

Pam Smith sought judicial review of a Primary Care Trust's decision to negotiate with United Health Europe Ltd as preferred bidder for general practitioner services in two Derbyshire villages.

In the Administrative Court, Collins J held that the Trust's decision fell within, and breached, the patient-involvement duty under Health and Social Care Act 2001, section 11. He nevertheless refused relief, relying on the availability of recourse to a Patients' Forum and the likelihood that consultation would not have altered the decision: [2006] EWHC 1338 Admin.

The appeal concerned whether those reasons justified refusing to quash an admittedly unlawful preferred-bidder decision.

1. Appeal allowed. May LJ, with whom Keene LJ agreed, held that the preferred-bidder decision should be quashed.

2. The Trust accepted that it had failed to perform its duty under section 11 of the Health and Social Care Act 2001. The claimant's possible recourse to a Patients' Forum after the decision was made was not an alternative remedy. The Forum could not determine that the statutory duty applied or require the Trust to reverse its decision. The duty to consult was the Trust's, not the claimant's.

3. The judge below also applied the wrong threshold in treating a probable absence of prejudice as sufficient to refuse relief. The authority had to establish that the decision inevitably would have been the same. In applying that principle, the court had to avoid substituting an assessment of the decision's merits for review of the lawfulness of the decision-making process.

4. The Trust could not say that proper consultation at the proper time might not have led to a different preferred bidder. Consultation during subsequent negotiations with the selected bidder was therefore not an adequate cure. Proper consultation could have affected either the tender criteria or their application, and thus the selection itself.

5. The court would quash the decision of 23 December 2005, subject to submissions on the form of order. May LJ doubted that a further mandatory order was necessary.

• Court of Appeal (Civil Division): Allowed the claimant's appeal and held that the preferred-bidder decision should be quashed: [2006] EWCA Civ 1291.

• High Court, Queen's Bench Division, Administrative Court (Collins J): Held that the Trust had breached section 11 of the Health and Social Care Act 2001, but dismissed the claim by refusing relief: [2006] EWHC 1338 Admin.