Royal Brompton and Harefield NHS Foundation Trust, R (on the application of) v Joint Committee of Primary Care Trusts & Anor

A public consultation must be fair and permit an effective, informed response. Yet consultation is inherently capable of correcting provisional errors. A court should generally intervene before the final decision only where the process has an irretrievable flaw.

A decision-maker may identify preferred options and need not consult on every viable option, provided the alternatives remain clear and consultees can advance them. Inaccuracies justify intervention only where, individually or cumulatively, they materially prevent proper consultation.

Where potentially biased advisers contribute to an independent decision, the fair-minded and informed observer must perceive a real possibility both that the advice was biased and that the bias infected the decision. A legitimate expectation requires a clear and unequivocal representation, read objectively and in its full context.

The Joint Committee of Primary Care Trusts consulted on reorganising paediatric cardiac surgical services in England. Its preferred London configuration retained Great Ormond Street Hospital and Evelina Children’s Hospital but excluded the Royal Brompton.

Owen J quashed the consultation in [2011] EWHC 2986 (Admin). He held that a self-assessment template created a legitimate expectation concerning the use of Royal Brompton’s research information and that the subsequent scoring process made the consultation unfair. Royal Brompton sought to preserve the order on additional grounds concerning irrationality, misinformation, deliverability and apparent bias.

The central issues were whether the consultation was legally unfair, whether the asserted representation was sufficiently clear to create a legitimate expectation, when a court should intervene during an unfinished consultation, and whether advice from bodies containing clinicians associated with competing hospitals created apparent bias.

1. Appeal allowed and respondent’s notice dismissed. The consultation was fair and lawful. Owen J’s order quashing it could not stand.

2. A consultation is capable of correcting errors in the decision-maker’s provisional thinking. The public body must reconsider its proposals conscientiously in light of the substance, rather than merely the number, of responses. Courts should avoid premature intervention and should generally grant relief during consultation only where an irretrievable flaw prevents the process from operating fairly. Even a public law error may sometimes be left for correction through consultation rather than remedied immediately by the court.

3. The consultation satisfied the fairness requirements stated in R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213. Consultees could support three London centres or propose that Royal Brompton replace one of the preferred centres. The decision-maker was entitled to state a preference and was not required to present every viable option as a formal consultation option.

4. No legitimate expectation arose. Such an expectation requires a clear and unequivocal representation. The self-assessment template had to be read as a whole. Its statement that the assessment and configuration exercises were separate, and that information would have no direct bearing on configuration scoring, was qualified by the statement that the information would ultimately inform the final recommendation. The request for research material was reasonably clear, and the Committee was entitled to proceed on the basis that Royal Brompton had supplied the material it wished to submit. In any event, the position was not irretrievable because further information could be provided during consultation and the research had since been rescored.

5. Where advice may be affected by apparent bias, the question is whether the fair-minded and informed observer, knowing the composition and remit of both the advisory and deciding bodies, would perceive a real possibility both of bias in the advice and of that bias infecting the decision. The large, expert Steering Group had no decision-making role, while the nationally representative Committee independently considered its recommendations. The required real possibility was absent. Nor did Mr Monro’s later public support for Southampton, without evidence linking it to his earlier evaluative work, establish prior bias.

6. The alleged errors about procedure numbers, research, travel, retrieval times and intensive-care consequences did not, separately or cumulatively, make the consultation unfair. They could be raised and evaluated within the consultation, and several involved matters of expert judgment for the decision-maker.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 472, allowed the Joint Committee’s appeal and dismissed Royal Brompton’s respondent’s notice.

2. High Court, Administrative Court: Owen J, in [2011] EWHC 2986 (Admin), quashed the consultation after finding that the use and scoring of research information breached a legitimate expectation and rendered the consultation unfair.