Smith v North Eastern Derbyshire Primary Care Trust & Anor

The duty under section 11 of the Health and Social Care Act 2001 may apply when a primary care trust replaces a failed service. The label “reprovision” does not determine the issue. A change in contractual form, personnel or provider may engage the duty when, in context, it may materially affect patients or the manner in which services are delivered.

The duty requires arrangements to ensure that affected patients or their representatives are informed, able to express views and have those views obtained. Formal consultation is not invariably required. The duty may usually be met through a patients’ forum. Despite the breach, judicial review relief may be refused where an effective alternative route existed and the breach could not realistically have affected the decision.

The claimant challenged the decision of a primary care trust to appoint United Health Europe Ltd to provide general practitioner services in Creswell and Langwith. The appointment followed the termination of an unsatisfactory existing service and a tender process.

The claimant alleged that the Trust had failed to comply with its duty under section 11 of the Health and Social Care Act 2001 to involve and consult affected patients and the public. The Trust argued that the arrangement was merely a reprovision of services and that section 11 was not engaged. The central issues were whether the duty applied, whether it had been complied with, and whether relief should nevertheless be granted.

1. The claim was dismissed. The Trust had failed to comply with section 11 of the Health and Social Care Act 2001, but relief was refused.

2. Section 11 has a wide application. “Involved in” means, in substance, that affected members of the public must be informed about proposed services or changes, given an opportunity to express views, and have their views obtained. Direct involvement by every user is unnecessary; representation is ordinarily sufficient.

3. The duty may arise under section 11(1)(b) where live proposals for changes in the way services are provided are being seriously considered. The proposals need not be the Trust’s preferred option. A change in contractual method can fall within the provision. Whether the duty is engaged depends on the circumstances.

4. Section 11(1)(c) is wider. Decisions connected with the provision or delivery of health services may engage it where they may materially change the services or materially affect patients. A change of personnel, contractual terms or contractual form does not automatically engage the duty, but the background is important. The replacement of a failed service may require consideration of the causes of failure and whether different arrangements are needed.

5. The duty does not require formal consultation in every case. Where there is doubt, a primary care trust should assume that the duty applies, since it can ordinarily be addressed by involving the Patients’ Forum. The confidential meeting relied on by the Trust did not amount to public involvement or consultation, and the existing participation arrangements had not produced compliance.

6. The claimant had acted without undue delay. The principle in R v Hammersmith & Fulham LBC ex p Burkett [2002] 1 WLR 1593 supported treating time as running from the decision to contract with the successful provider.

7. Judicial review is a remedy of last resort. The Patients’ Forum provided an alternative route which should have been attempted. In addition, the judge considered it highly unlikely that proper involvement would have produced a different decision. Those matters made relief inappropriate, although the defendants were ordered to pay three-quarters of the claimant’s costs.