Save Our Surgery Ltd, R (on the application of) v Joint Committee of Primary Care Trusts

Lawful consultation requires sufficient information to enable an intelligent and informed response. Disclosure of every submission or item of advice is unnecessary, but credible, relevant and significant adverse information should ordinarily be disclosed. The significance of information depends on the context, including the importance and intrusiveness of the decision and the role played by the information in the decision-making process.

Where expert scoring becomes a significant and potentially decisive basis for comparing options, consultees may need the underlying scores even if the decision-maker elects not to examine them. A decision-maker must also scrutinise material evidence sufficiently to understand the basis and significance of expert advice. Failure to disclose and consider such scores rendered the consultation and decision unlawful.

The claimant sought judicial review of the defendant’s decision to designate seven English centres for paediatric cardiac surgery. The decision followed a lengthy national consultation and selected Option B, which included Newcastle rather than Leeds as the northern centre.

The claimant did not challenge the merits of reconfiguration. It challenged the fairness of the consultation and the decision-making process, principally on the grounds that the Kennedy Panel’s sub-scores had not been disclosed and had not been scrutinised by the defendant. The sub-scores informed the overall quality scores used to compare the configuration options.

1. The claim succeeded. The decision of the JCPCT was quashed because the consultation was procedurally unfair and the JCPCT failed to take into account a material consideration.
2. The governing consultation principles, derived principally from R v North and East Devon Health Authority, ex parte Coughlan [2001] 1QB 213 and Devon County Council v Secretary of State for Communities and Local Government [2010] EWHC 1456 (Admin), required consultation while proposals remained formative, sufficient reasons to permit an intelligent response, adequate time, and conscientious consideration of the consultation product. The test was whether the process was so unfair as to be unlawful.
3. Disclosure of all underlying material is not automatically required. However, the Kennedy sub-scores had acquired particular significance. Quality carried substantial weight, the sub-criterion of high-quality service had the greatest influence within quality, and the difference between Leeds and Newcastle materially affected the final comparison. The narrative report identified strengths and weaknesses but did not explain how those matters had been weighted in the scoring.
4. The fact that the scores reflected expert judgment, or that the underlying information had originated from the centres, did not remove the need for disclosure. Leeds knew what information it had supplied but did not know how it had been evaluated. Disclosure would have enabled focused representations and, if necessary, requests for reassessment.
5. The JCPCT was also required to scrutinise the sub-scores. Its decision to leave the matter entirely to the experts failed to recognise that the scores formed the basis of a significant part of the quality assessment. The sub-scores were therefore a material consideration which the JCPCT should have considered.
6. The court could not determine the late argument concerning Appendix One because the evidential position was unsatisfactory. The claim nevertheless succeeded on both principal grounds. The JCPCT’s decision was quashed.