Flatley, R (on the application of) v Hywel DDA University Local Health Board & Anor (Rev 1)

Consultation on proposed public-service changes must be conducted fairly, at a formative stage and with an open mind. A decision-maker may formulate options before consultation and may have a preferred option, provided that preference is disclosed. Operational questions such as safety, staffing and transport may be left to implementation where the decision-maker is satisfied that a safe and workable model can be developed and implementation is conditional upon that being achieved. A statutory power to make a final decision on a service proposal concerns the proposed outcome, not necessarily the process by which it was formulated. The decision-maker may nevertheless take procedural concerns into account when deciding the proposal. The public-sector equality duty requires conscious and conscientious attention to equality implications, but does not require every operational detail to be resolved before a policy decision is made.

Three consolidated judicial review claims challenged changes to emergency, maternity and neonatal services in rural West Wales. Anthony Flatley challenged the decisions of the Hywel Dda University Local Health Board concerning emergency care at Prince Philip Hospital and the Minister’s subsequent determination. Kayleigh Donohoe challenged the Minister’s decisions concerning neonatal and maternity services at Withybush Hospital.

The claimants alleged unlawful consultation, breach of legitimate expectation, failure to comply with the public-sector equality duty, and misunderstanding of the Minister’s powers under the statutory regime governing community health council referrals. The central issues were whether the consultation was procedurally fair, whether unresolved implementation matters invalidated the decisions, and whether the Minister was required to determine or investigate alleged defects in the Board’s public consultation.

1. Disposition. The claims failed. Permission was refused in Flatley 1; the substantive applications in Flatley 2 and Donohoe were dismissed; and permission was refused on the remaining grounds.
2. Consultation. The requirements of fair consultation include consultation by the decision-maker with an open mind and at a formative stage, clear and fair consultation documents, and a proper opportunity to respond. A decision-maker may formulate consultation options without a prior consultation on those options. An open mind does not require an empty mind. The Board’s earlier internal document was an unapproved starting point for discussion, not a predetermined or undisclosed preferred option. The subsequent process was extensive, fair and lawful.
3. Implementation issues. Safety, transport and staffing had been identified and considered. A policy-maker need not resolve every operational matter before selecting a service model if satisfied that an operationally safe model can be developed and that implementation will occur only after the necessary safeguards are in place.
4. Legitimate expectation. Statements describing the intended constitution of an implementation board were information about a proposed process, not a binding promise that the Board could not later alter its constitution. In any event, no relevant detriment or abuse of power was established.
5. Equality duty. The Board had conscientiously considered the transport and other equality impacts under section 149 of the Equality Act 2010. The duty did not require detailed transport solutions to be finalised before the service model was adopted, particularly where implementation was conditional on safe arrangements. The Minister likewise had sufficient material before him and was not in breach.
6. Ministerial power. Regulation 27(9) of the 2010 Regulations empowers the Minister to make a final decision on the service proposal. “Proposal” refers to the service outcome, not the process by which it was selected. The Minister had no obligation to make a separate determination on alleged defects in public consultation, but retained a discretion to consider those defects when determining the proposal. His letter did not show that he misunderstood or failed to exercise that discretion.