Fudge, R (on the application of) v South West Strategic Health Authority & Ors

The duty under section 11 of the Health and Social Care Act 2001 is imposed only on specified bodies responsible for the relevant health services. It is not confined to bodies that will make the ultimate decision. The duty is to make arrangements securing public involvement and consultation, with content varying according to the stage and circumstances. At a limited stage, sharing information may suffice. A Primary Care Trust may owe the duty in relation to proposals led by central government. Judicial review relief remains discretionary: a consultation breach does not automatically require a decision to be quashed, particularly where the practical benefit would be negligible or the proceedings disproportionate.

The claimant challenged the selection of UK Specialist Hospitals as preferred bidder for an Independent Sector Treatment Centre in Avon, Gloucestershire and Wiltshire. She argued that the South West Strategic Health Authority and South Gloucestershire Primary Care Trust had failed to involve or consult the public under section 11 of the Health and Social Care Act 2001 during a procurement process led by the Department of Health.

Calvert-Smith J held that the duty had arisen while the Strategic Health Authority was advancing its own proposals, but not after central government assumed responsibility for the scheme, and refused judicial review: [2007] EWHC 1195 (Admin). The claimant appealed. During the appeal she abandoned the claim to quash the preferred-bidder decision but sought a declaration. The central issue was whether the Primary Care Trust’s limited participation in the centrally led process triggered the statutory duty and what relief, if any, should follow.

1. Disposition. Moses LJ gave the judgment of the Court. The judge had erred in law, because the statutory duty could arise notwithstanding that the Primary Care Trust was not responsible for making the ultimate decision. Nevertheless, the Court refused relief and dismissed the appeal.
2. Responsible bodies and services. Section 11 of the Health and Social Care Act 2001 applies only to the bodies listed in subsection (2), not the Secretary of State or the Department of Health. Responsibility is a statutory concept under subsection (3). The Strategic Health Authority neither provided nor directed, commissioned on behalf of, or arranged for the provision of the relevant services. The Primary Care Trust was responsible for services it currently provided. It was not yet responsible for the future services of UK Specialist Hospitals, because it had not decided to include that centre on its local menu of providers.
3. Scope and content of the duty. Section 11(1)(a) and (b) are not limited to processes leading to a decision by the responsible body. The provision imposes an obligation to make arrangements with a view to securing involvement and consultation, rather than requiring full consultation whenever one of the statutory circumstances occurs. The appropriate degree of involvement depends on the stage and circumstances. Full consultation in the sense described in R v Brent London Borough Council ex p Gunning [1985] 84 LGR 168, approved in R v London Borough of Barnet ex p B [1994] ELR 357 and R v North and East Devon Health Authority ex p Coughlan [2001] 1 QB 213, is not required on every occasion; limited involvement may consist of providing information.
4. Application. The Department’s proposals concerned changes in the way existing non-acute services were to be provided. Discussions about the case mix, travel times and the development of the procurement specification were sufficient to engage the Primary Care Trust’s duty to involve patients or their representatives. In particular, the Trust was obliged to share the information circulated on 14 December 2005. The Department’s advice that the Trust had no duty to involve or consult on a centrally led scheme was legally erroneous.
5. Relief. The Court considered that the information was probably passed to the relevant representative bodies, although it reached no final view on that issue. The claimant had abandoned the attempt to quash the preferred-bidder decision, and a declaration would add nothing. The Court emphasised that relief in judicial review is discretionary and that a consultation breach does not automatically require the process to be restarted. The correct approach requires attention to the nature and purpose of the obligation, its likely impact on the decision, and the disbenefits to others. In Smith v North East Derbyshire Care Trust and Secretary of State for Health [2006] EWCA Civ 1291, the Court had stated that inevitability, rather than probability, was required when assessing whether the outcome would have differed. The approach in R v Brent LBC ex p Walters [1998] 30 HLR 328 was particularly relevant. The proceedings were wholly disproportionate to the limited utility achieved.

1. Court of Appeal (Civil Division): The Court held that the Administrative Court had erred in law as to the scope of section 11, but refused relief and dismissed the appeal.
2. Administrative Court: Calvert-Smith J held that the duty arose while the Strategic Health Authority was advancing its own proposals, but not after the Department of Health assumed responsibility for the centrally led scheme, and refused judicial review: [2007] EWHC 1195 (Admin).