F & Anor, R (on the application of) v The Healthy Futures Joint Committee of Primary Care Trusts

Consultation on proposed changes to public services is lawful where the decision-maker consults while policy remains formative, even though the available options have been narrowed and a preferred option identified. The law does not require every conceivable alternative, including maintaining the status quo, to be presented as a formal consultation option. The critical question is whether the decision-maker has adopted a fixed policy and is consulting only on implementation details. If the decision-maker retains an open mind and conscientiously considers the consultation responses before making the final decision, the consultation duty is capable of being satisfied.

F, a child with severe major neurone disorder, challenged the proposed closure of the Accident and Emergency department at Rochdale Infirmary. The claim alleged breach of the consultation duty under section 11(2) of the Health and Social Care Act 2001, irrationality and breach of article 2 of the Convention.

Walker J refused permission on paper. On renewal, the claimant abandoned the irrationality and article 2 grounds and pursued only the consultation challenge. The central issue was whether the defendants had unlawfully excluded from formal consultation an option retaining the Rochdale Accident and Emergency department.

1. Permission refused; claim dismissed. The claimant failed to show an arguable case meriting full investigation at an oral judicial review hearing.
2. Section 11(2) of the Health and Social Care Act 2001 required persons affected by the health services to be involved and consulted on their planning, proposals for changes and decisions affecting their operation. The consultation principles stated in R v Brent London Borough Council, ex parte Gunning [1986] 84 LGR 16,8, and approved in R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 662, were applicable.
3. A consultation may lawfully proceed after the decision-maker has reduced the possible courses of action and identified a preferred option. The decision-maker must still retain an open mind and consult before the decision is made.
4. The distinction identified in Sardar and Others v Watford Borough Council [2006] EWHC 1590 (Admin) was material. A policy remains formative where a provisional view or preferred option exists, but consultation is defective if a decision in principle has already been adopted and only timing or implementation remains.
5. The defendants had undertaken extensive engagement, considered several feasible options and conducted intense discussion before the final decision. Their exclusion of a formal “no change” option did not establish a closed mind. They remained entitled to reject any or all of the options.
6. The renewed application was not defeated by delay. An earlier challenge would have been premature because the defendants might still have rejected all proposed options.

1. High Court (Administrative Court): Walker J refused permission on paper on 13 March 2007. On renewal, Mr Justice Bennett again refused permission and dismissed the proceedings.