Royal Brompton & Harefield NHS Foundation Trust v Joint Committee of Primary Care Trusts & Anor

A lawful consultation must occur while proposals remain formative, provide sufficient reasons for an intelligent response, allow adequate time, and require conscientious consideration of responses. A decision-maker may consult on preferred options while retaining an open mind. Information supplied must not materially mislead consultees. A clear and unequivocal representation about the evaluation process may generate a legitimate expectation. Breach will invalidate consultation where it seriously distorts responses on a central issue. The consultation was quashed because assessment information was used contrary to a clear assurance, producing a radically unfair assessment of research and innovation.

The claimant specialist NHS foundation trust sought judicial review of a consultation conducted by the Joint Committee of Primary Care Trusts concerning the reconfiguration of paediatric congenital cardiac services in England. The consultation proposed reducing the number of surgical centres and preferred two London centres, excluding the claimant.

The claimant alleged predetermination, irrationality, misinformation, bias and breach of legitimate expectation. The court considered whether the preferred options had been predetermined, whether their selection was justiciable or irrational, whether the consultation document was misleading, whether the process was tainted by bias, and whether the claimant had been given a clear assurance about the separation of the assessment and configuration evaluations.

1. Predetermination. The JCPCT was entitled to identify and consult upon preferred options, including options limited to two London centres and excluding the claimant, provided it retained an open mind. The consultation document and response form allowed consultees to challenge both the number of London centres and their identity. The documentary material showed an evolving process rather than a concluded decision before consultation. The predetermination challenge therefore failed.
2. Irrationality and justiciability. The preferred-option decisions had no substantive legal consequences and remained proposals at the formative consultation stage. They were therefore not justiciable on the basis advanced. In any event, preferring two London centres and preferring the Evelina and GOSH could not be characterised as irrational.
3. Information and bias. The reference to current London activity rather than projected activity was not materially misleading. Nor was the lower deliverability score for the claimant’s paediatric intensive care unit irrationally explained. The Steering Group was advisory, not the decision-maker, and the JCPCT independently considered the material. The bias challenge failed.
4. Legitimate expectation. The self-assessment template clearly represented that information supplied at the assessment stage would not have a direct bearing on configuration-evaluation scoring. The JCPCT nevertheless used that information to score research and innovation. The resulting low quality score materially affected the apparent case against retaining the claimant and seriously distorted the consultation.
5. The consultation exercise was unlawful and was quashed.