Bullmore & Anor v West Hertfordshire Hospitals NHS Trust

Public consultation must be conducted fairly while proposals remain open to meaningful consideration. Consultees must receive sufficient reasons and time to respond, and the decision-maker must conscientiously consider the consultation outcome with a receptive mind. There is no duty to obtain consensus. A consultation process involving citizens’ juries is assessed by the ordinary principles of fairness; it does not create a separate legal test. Where an earlier strategic decision has established a broad model of service provision, a later consultation on concrete steps to implement that model may still include the substance of those steps. A decision is not vitiated by changed circumstances unless the claimant identifies a specific factor showing that the decision-making process or its underlying case has been undermined.

The claimants sought judicial review of the defendant NHS Trust’s decision of 16 November 2006 to reorganise hospital services in west Hertfordshire. The decision endorsed the centralisation of acute services at Watford General Hospital and approved one of two options for interim arrangements for planned surgery at other sites.

The claimants alleged that the consultation was unfair, that its outcome was inadequately reported or considered, and that the abandonment of a proposed new hospital at Hatfield undermined the decision. The Trust argued that centralisation at Watford had already been settled by the earlier Investing in Your Health strategy and that the challenge was late or overtaken by subsequent events.

1. Claim dismissed. The court was concerned only with legality, not the merits or desirability of the service reorganisation.
2. The scope of the Healthy Future consultation included the proposal to bring forward centralisation of acute services at Watford, as well as the two specific options for implementing that centralisation. The earlier strategic decision did not make the location of acute services immutable. Although centralisation at Hemel Hempstead was not required to be put forward as a specific option, consultees could comment on the proposal to centralise acute services at Watford.
3. The ordinary consultation principles stated in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 and R v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 WLR 1 applied. Consultation had to be fair, undertaken with proposals at a formative stage, supported by sufficient reasons, and followed by conscientious consideration of the outcome. There was no requirement to obtain agreement or consensus.
4. The use of citizens’ juries did not create new legal requirements. The information provided could have been fuller, but the process gave a genuine invitation to advise and sufficient reasons for intelligent consideration and response. The November report gave a fair overview of the juries’ views, including support for retaining acute services at Hemel Hempstead. The Board had a receptive mind and conscientiously considered both qualitative and quantitative responses.
5. The abandonment of the Hatfield hospital proposal did not vitiate the decision. The Board had information about substitute arrangements, and the claimants identified no specific factor showing that the financial or clinical case for centralisation at Watford had been undermined.
6. The issues of lateness, prematurity and relief did not require determination. The judicial review application was dismissed.