Copson, R (on the application of) v Dorset Healthcare University NHS Foundation Trust

A statutory duty to involve service users does not require consultation in every case. Where consultation is undertaken, it must be real and meaningful, but the decision-maker retains a broad discretion over its form, scope and the information supplied. Consultees need sufficient information to make an intelligent response, not every detail material to the ultimate decision. The consultation must be assessed in its full context, including earlier engagement and subsequent development of the proposals.

The public sector equality duty requires substantive, conscious and open-minded consideration of the statutory goals. It does not require a formal equality impact assessment, impose a duty to achieve equality, or permit a merits challenge disguised as a compliance challenge.

The claimant sought judicial review of the defendant Trust’s decision to implement a reconfiguration of urgent mental health services in west Dorset, including the closure of inpatient facilities at the Hughes Unit and Stewart Lodge and greater reliance on community treatment and crisis accommodation.

She alleged that the Trust had failed to involve service users lawfully under section 242 of the National Health Service Act 2006, principally because inadequate information had been supplied about costs and transport. She also alleged breach of the public sector equality duty under section 149 of the Equality Act 2010. The central issues were whether the consultation was unlawful and whether the Trust had failed, in substance, to have due regard to equality considerations.

1. Claim dismissed. The engagement and consultation process under section 242 of the National Health Service Act 2006 was lawful.
2. The statutory obligation was to involve service users; section 242 did not itself require consultation. Having chosen consultation, the Trust had to comply with the principles stated in R (Coughlan) v North and East Devon Health Authority [2001] 1 QB 213 and R (Wainwright) v Richmond upon Thames LBC [2001] EWCA Civ 2062: the proposals had to be at a formative stage, sufficient information and time had to be provided, and responses had to be conscientiously considered.
3. The consultation had to be considered as a whole. Earlier engagement was relevant because it formed part of the continuing statutory involvement process, and the development of the proposals did not demonstrate predetermination. The Trust was entitled to decide the extent of information required. Service users needed enough information to respond intelligently about the range and delivery of services and their effects, but they did not need detailed financial information enabling them to assess financial viability. The information about transport accurately reflected the incomplete state of the proposed arrangements and did not make the consultation unfair.
4. The Trust had not unlawfully approached the consultation with a closed mind. The report to the Scrutiny Committee did not establish that the outcome had been prejudged, and the claimant had not shown that the consultation responses were disregarded. The broad discretion recognised in R (Wainwright) v Richmond upon Thames LBC [2001] EWCA Civ 2062 and Devon County Council v Secretary of State for Communities and Local Government [2010] EWHC 1456 (Admin) was not exceeded.
5. The challenge under section 149 of the Equality Act 2010 also failed. The duty required due regard in substance, with rigour and an open mind, but was not a duty to achieve a particular result. An equality impact assessment was a tool for compliance, not a statutory prerequisite. The repeated Equality Analyses, their revision as the proposals developed, and the evidence that transport and the needs of persons with protected characteristics had been considered were sufficient. The court should not subject such assessments to minute forensic analysis or use the equality duty as a back door merits challenge.