R (Copson) v Dorset Healthcare University NHS Foundation Trust

The claimant sought quashing of the defendant Trust's 14 June 2012 decision to implement a Mental Health Urgent Care Services Project that reconfigured mental health provision in west Dorset. The challenge was advanced on two grounds: (1) that consultation under section 242 of the National Health Service Act 2006 was unlawful because it was not carried out at a formative stage, was not approached with an open mind, and failed to provide sufficient information (notably on cost and transport); and (2) that the defendant breached the public sector equality duty under section 149 of the Equality Act 2010.

The court applied established principles of lawful consultation (including the need for consultation to be at a formative stage, to provide sufficient reasons to enable an intelligent response, to allow adequate time and to be conscientiously considered) and the principles governing the public sector equality duty. It concluded that the Trust had engaged meaningfully with service users over an extended period (beginning with engagement and an Equality Analysis in 2011), that the spring 2012 consultation fell within that wider context and was lawful, and that the information provided was sufficient for the purpose of involvement under section 242. The court also held that the equality duty had been kept in mind, that Equality Impact Analyses had been procured and updated, and that any deficiencies did not amount to breach of the duty in substance. The claim was dismissed.

Background and nature of the claim:

• The claimant, a user of mental health services who used the Hughes Unit at Bridport, sought judicial review to quash the Trust’s decision of 14 June 2012 to implement a reconfiguration of urgent mental health care in west Dorset which entailed closure of community in-patient beds and a move to a hub-and-spoke model with increased locality/home treatment and a single crisis house.
• The claimant sought a quashing order on two principal grounds: unlawful consultation under the Trust’s duties as a relevant English body under chapter 2 of Part 12 of the National Health Service Act 2006 (section 242 and the section 244 scrutiny duty) and failure to comply with the public sector equality duty in section 149 of the Equality Act 2010.

Procedural posture:

• Permission to apply for judicial review was granted by Burton J on 16 January 2013 on agreed terms, including a provision for the parties to meet to attempt to reach agreement; no agreement was reached.

Key factual and documentary background:

• Engagement began in autumn 2011 with an Equality Analysis and workshops for service users; proposals evolved from an initial model (three crisis houses) to a revised model (one crisis house) and a hub-and-spoke clinical model with a reduction in functional inpatient beds from 58 to 38.
• A further Equality Impact Analysis was prepared and revised in March and June 2012. Formal consultation ran from 23 April to 30 May 2012 using a consultation document setting out the revised proposals, staff changes, and references to measures to address transport, and the Scrutiny Committee of Dorset County Council considered the Project on 24 May 2012.
• The defendant decided to approve the reconfiguration on 14 June 2012. There were no minutes produced of that decision meeting and no witness statements from the defendant or the interested party in the judicial review proceedings.

Issues framed by the court:

• Whether the consultation (considered in its context) complied with the legal requirements for lawful consultation (formative stage, sufficient reasons/information, adequate time, and conscientious consideration of responses).
• Whether the Trust complied with the public sector equality duty under section 149 of the Equality Act 2010 at the time of the decision.

Court's reasoning and conclusions:

• The court reviewed the authorities on consultation and held that the spring 2012 consultation had to be viewed in the context of the earlier engagement and Equality Analysis from 2011; the consultation was part of a continuing process rather than an isolated event.
• The judge concluded that the information provided (including the consultation document and revised EIAs) was sufficient to enable consultees to make informed responses about the range and delivery of services. Detailed financial information was not required because the proposals were advanced as cost-neutral and the purpose of the consultation was to involve users, not to turn them into surrogate decision-makers on financial viability.
• Transport difficulties were recognised and raised in consultation; the Trust had identified commitments to develop community transport schemes. The court accepted that transport planning was incompletely formulated at the time but found that this did not make the consultation unlawful or the subsequent decision irrational.
• On the equality duty, the court noted that an EIA is a tool and not a statutory prerequisite; the Trust had procured and revised Equality Analyses, had the duty in mind, and had integrated consideration of equality in the decision-making process. Deficiencies in the EIAs were not, on the evidence, sufficient to demonstrate a breach of section 149.
• The claimant bore the burden of proof; the absence of defendant witness evidence and minutes was unfortunate but did not lead to the conclusion that the duty had not been performed. Post-decision information cannot cure a prior breach, but the court found no prior breach to rectify.

Outcome: The claim for judicial review was dismissed.

The claim is dismissed. The court held that the Trust's engagement and consultation process, taken in its full context (including equality analyses and prior engagement), was lawful and within the Trust's broad discretion; the information provided was sufficient for consultees to make meaningful responses and the public sector equality duty under section 149 was kept in mind and not breached in substance.