Compton (Community Action for Savernake Hospital), R (on the application of) v Wiltshire Primary Care Trust

A public authority’s consultation may lawfully propose a substantial change in the way services are delivered without specifying every later operational detail, provided the substance of the change was fairly presented and consultees had an opportunity to respond. The statutory duty under section 11 of the Health and Social Care Act 2001 requires arrangements securing involvement and consultation, but the extent required depends on the circumstances. Apparent bias by an adviser vitiates a decision only where there is a real possibility that the adviser’s bias adversely infected the decision-maker. An independent analytical report which summarises consultation responses without recommending the outcome is materially different from advice directing the decision. Questions of operational or financial weight are generally for the public authority, subject to ordinary public law limits.

The claimant sought judicial review of decisions by the Wiltshire Primary Care Trust concerning the Day Hospital and Minor Injuries Unit at Savernake Hospital. She alleged apparent bias because the company analysing consultation responses was connected through a domestic relationship to an officer of the Strategic Health Authority. She also alleged inadequate consultation and irrationality, contending that the Day Hospital had been closed without consultation and that the Minor Injuries Unit had been closed for inadequate reasons.

The PCT had consulted on a reconfiguration of community health services, including neighbourhood teams, greater provision in patients’ homes and fewer hospital-based services. It subsequently approved neighbourhood teams and the concentration of Minor Injuries Unit services at two other sites.

1. The claims were dismissed. The decisions concerning the Day Hospital and Minor Injuries Unit were not unlawful on grounds of apparent bias, inadequate consultation or irrationality.
2. Apparent bias is assessed by asking whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The principle can apply to an adviser where there is a real possibility that the adviser’s bias adversely infected the decision-maker. Relevant considerations include the nature of the advice, its importance to the decision, and the relationship between adviser and decision-maker.
3. The appointment of Red Bridge was an error of judgment, given the contentious consultation and the connection in question. However, its report summarised consultation responses and made no recommendation. The PCT chairman and chief executive had read the responses, and the Board members certified that they had informed themselves. The fair-minded and informed observer would also understand the limited statutory relationship between the Strategic Health Authority and the PCT. No real possibility of bias was established.
4. The common-law consultation requirements were satisfied. Consultation must occur while proposals remain formative, provide sufficient reasons for intelligent consideration and response, allow adequate time, and require conscientious consideration of the product of consultation. Section 11 of the Health and Social Care Act 2001 required arrangements securing involvement and consultation, with the precise obligation depending on the circumstances.
5. The consultation had sufficiently disclosed the proposal to shift Day Hospital-type services from hospital settings into neighbourhood teams and patients’ homes. The later implementation work did not constitute a fresh decision or a substantive change requiring further consultation. The Day Hospital rooms had substantially ceased to operate as a suite, but the services remained available in the community and, in some circumstances, at the site.
6. The Minor Injuries Unit decision was based on a mixture of clinical, operational and financial considerations which had been addressed in the consultation material and Board papers. The court would not conduct a merits review of the PCT’s financial methodology. The Alberti report had been considered, and the weight given to it was for the PCT.