Morris, R (on the application of) v Trafford Healthcare NHS Trust

The statutory duty to involve and consult patients and the public applies to decisions involving changes in the way health services are provided. It is not confined to substantial changes. Any exception based on immediate risks to patient or staff safety is exceptional and does not apply where the situation could have been stabilised while consultation took place. Consultation must be adequate in time and content and appropriate to the scale and contentiousness of the proposal. A breach may justify quashing the decision, but the court may refuse a mandatory order where a proper consultation could legitimately lead to different outcomes.

The claimant sought judicial review of the defendant NHS Trust’s decision to cease admitting patients to two inpatient wards at Altrincham General Hospital. The Trust accepted that no public consultation had preceded the decision, but contended that immediate closure was required by clinical safety concerns arising from inadequate medical cover.

The claimant argued that the decision breached the consultation duty in section 11 of the Health and Social Care Act 2001, and that the claimed urgency was not genuine. The Trust also relied on subsequent review, assurances of future consultation and the practical difficulties of reopening the wards. The issues were whether the decision was unlawful for failure to consult and, if so, whether the court should order reopening.

1. The judicial review claim was granted. The Trust Board’s decision to close the inpatient wards was quashed. The application for a mandatory order requiring their reopening was refused.
2. Section 11 of the Health and Social Care Act 2001 imposes a duty on NHS trusts to make arrangements for patients and the public to be involved in and consulted on decisions affecting the operation of health services. Unlike the separate duty concerning substantial changes, the section 11 duty is not limited to substantial changes.
3. The consultation duty is of high importance. Consultation must be adequate in time and content and appropriate to the scale of the issue. The more contentious the proposed change, the greater the need for meaningful public involvement, including engagement with relevant patient and public involvement forums.
4. The court accepted that guidance contemplated an exceptional exemption where an immediate decision was required because delay would threaten the safety or welfare of patients or staff. That exception did not apply. The medical-cover difficulties had existed for months, and the Trust could have restricted admissions and stabilised the position while allowing time for consultation.
5. The recommendation supporting closure had also proceeded on a misunderstanding that the wards were being used for acute care, whereas their function was rehabilitative. The court nevertheless rejected the allegations of bad faith and found that financial pressures had not been shown to have infected the decision.
6. Reopening was not ordered. The wards had already been closed for several months, and the Trust had undertaken to conduct a proper consultation which would include reopening as an option. The outcome after consultation remained for the Trust to determine.