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

The claimants sought judicial review of (i) a Hywel Dda University Local Health Board decision to reconfigure emergency services at Prince Philip Hospital, Llanelli (PPH) and neonatal services in the area, and (ii) subsequent Ministerial determinations made after referral by the Community Health Council under regulation 27 of the Community Health Councils (Constitution, Membership and Procedures) (Wales) Regulations 2010. Key legal principles analysed were the public law duty to consult fairly (including absence of predetermination and consultation at a formative stage), the concept of legitimate expectation, and the public sector equality duty under section 149 of the Equality Act 2010.

The court found that the LHB consultation process was lawfully conducted: there was no reliable evidence that an executive draft document from 2010 amounted to a Board-endorsed predetermined plan; the consultation meet statutory and guidance standards; issues left to implementation (transport, staffing and safety) were legitimately capable of being addressed through the implementation/gateway process; and promises about the chair of an implementation board did not give rise to a binding legitimate expectation. The court also held that the LHB and the Minister had given due regard to equality matters. The Minister lawfully exercised his regulation 27(9) power to determine the substantive proposals: he was not required to make a discrete determination on the conduct of public consultation but could take process into account when considering the substantive proposals.

Disposition: Flatley 1 (LHB decision) – permission refused. Flatley 2 (challenge to Minister) – substantive application dismissed. Donohoe – application dismissed on the permitted ground and permission refused on other grounds.

Background and parties:

The claims concern proposed reconfiguration of emergency and neonatal services in largely rural West Wales by Hywel Dda University Local Health Board (LHB) and determinations by the Welsh Minister after referral by the Community Health Council (CHC). The First Claimant (Anthony Flatley) and the Second Claimant (Kayleigh Donohoe) challenged (through judicial review) the lawfulness of the LHB decision and the Minister's determinations. The disputes focused on proposed nurse-led emergency provision at Prince Philip Hospital, Llanelli (PPH) with telemedicine doctor support rather than on-site doctors, and consolidation of neonatal services (Level 2 facility) at Glangwili or Withybush.

Nature of application/relief sought (i):

• Challengers sought quashing and relief grounded on unfair consultation (predetermination/preferred option not disclosed, insufficient information and time, deferral of material issues to implementation), breach of legitimate expectation about an independent implementation board chair, and failure to comply with the public sector equality duty (Equality Act 2010 s.149).

Procedural posture (ii):

The LHB decision challenged is Flatley 1; the Minister's determinations after CHC referral are challenged in Flatley 2 and Donohoe. Some permission applications had been refused earlier and were determined on a rolled-up basis for substantive hearing. A Scrutiny Panel convened by the Minister produced expert reports which informed his determinations.

Issues framed by the court (iii):

• Whether the LHB consultation was unlawful because the Board had a predetermined plan (predetermination) or had a concealed preferred option;
• Whether the LHB unlawfully deferred core issues (transport, staffing, safety) to implementation so as to frustrate consultation;
• Whether a legitimate expectation arose as to appointment of an independent chair of an implementation board;
• Whether the LHB and the Minister failed to comply with the public sector equality duty (s.149 Equality Act 2010); and
• Whether the Minister misconstrued his powers under regulation 27 of the 2010 Regulations and/or failed to take account of defects in the LHB consultation when making his final determination.

Court's reasoning and findings:

- Predetermination: the court examined a 2010 internal "Spend to Save" document relied on by claimants as evidence of predetermination. The judge accepted LHB evidence that the 2010 document was an early, non-board-endorsed executive draft used for initial discussion with the Welsh Government and clinicians and that it was not a Board-approved or binding plan. There was no reliable evidence the board had adopted a predetermined option. The court emphasised that public bodies may have early views and that formulation of options does not require disclosure of initial drafts.

- Deferral to implementation: the court accepted that operational matters (transport, staffing, safety) could legitimately be addressed through an implementation/gateway process and that the LHB had identified and assessed equality and transport impacts and would not implement changes unless safe arrangements (including transport) were in place. That deferred consideration did not render consultation unlawful.

- Consultation adequacy: independent consultant reports and an external award of best practice supported the LHB's position that listening/engagement and the formal consultation were comprehensive and proportionate. The consultation periods were adequate and, on the material, information about the nurse-led model and telemedical support was clear to consultees.

- Legitimate expectation: statements in consultation documents about an "independent" implementation board chair were treated as descriptive information rather than a binding promise; there was no arguable legitimate expectation, nor demonstrated detriment from the eventual choice of chair.

- Equality duty: the decision-maker had given due regard; transport and other potential impacts were identified and mitigation envisaged. The court followed authority that identification of issues and proposals to "firm up" solutions during implementation can satisfy s.149 where there is conscious focus on equality implications.

- Ministerial role under regulation 27: regulation 27(9) empowers the Minister to make a final decision on the substantive proposal referred by the CHC; it does not give power to make a separate determination about the LHB's public consultation process. Process concerns may, however, be considered where relevant to the substantive decision. The Minister acted within his discretion and sensibly relied on an expert Scrutiny Panel; his letter indicating he would not separately determine the public consultation did not amount to unlawfulness.

Outcome:

The judge refused permission for Flatley 1, dismissed the substantive application in Flatley 2 and dismissed Donohoe on the permitted ground while refusing permission on remaining grounds. The court concluded there was no unlawful pre-determination, no unfair consultation, no binding legitimate expectation and no breach of the equality duty.

This was a first-instance judicial review. The court refused permission in Flatley 1 (the LHB decision) and dismissed the substantive application in Flatley 2; in Donohoe the court dismissed the application on the permitted ground and refused permission on others. The judge concluded there was no lawful basis to quash the LHB decision or the Minister's determinations: the 2010 internal draft was not a Board-endorsed predetermined plan, consultation satisfied statutory requirements and guidance, implementation-stage matters could legitimately be left to a gateway process, no legitimate expectation arose in relation to the implementation board chair, and the public sector equality duty was properly considered. The Minister acted within the scope of regulation 27(9) in making substantive determinations and was not obliged to make a discrete determination on the public consultation process.