Thomas, R (On the Application Of) v Hywel Dda University Health Board

A statutory duty to consult depends on the statutory context, purpose and relevant guidance. Duties to consult a community health council and the wider public are distinct. A service change is not substantial merely because it is controversial or affects patients. It must be assessed in the round, including alternative provision, its transitional nature, resources and the decision-maker’s expertise. Controversiality remains material but is not determinative where a change is not substantial. The common law adds no general duty to consult absent legitimate expectation or conspicuous unfairness.

The claimant challenged the defendant health board’s decision of 30 January 2014 to close the in-patient facility at Cardigan Hospital without formal consultation. The health board had suspended admissions because of staffing, clinical governance and patient-safety concerns. It later endorsed closure, with beds to be reprovided through community and other facilities pending a planned new facility.

The issues were whether the closure was a substantial service change, whether safety risks removed any consultation obligation, whether the board lawfully exercised its discretion not to consult, and whether common-law fairness imposed an additional duty.

1. Claim dismissed. The statutory duties to consult the community health council and the wider public arose from distinct parts of the statutory scheme. Regulation 27(7) of the 2010 Regulations concerned consultation with the community health council and did not prevent a member of the public from challenging a failure to consult the public under section 183 of the National Health Service (Wales) Act 2006.
2. The statutory duty and its scope depended on context. The court followed the principles in R (Moseley) v Haringey London Borough Council [2014] UKSC 56 and R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin). Courts should be slow to add to consultation burdens imposed by democratically accountable bodies, except where common-law fairness required it.
3. The closure was not a substantial service change. Relevant considerations included the number of beds, the net effect of alternative provision, the transitional character of the arrangement pending the new facility, continued availability of beds, resource constraints, and the health board’s expertise and local knowledge.
4. The safety exception in regulation 27(5) did not determine the case. The decision was not based solely on immediate safety risks; it also reflected strategic movement towards community care, deficiencies in the hospital environment and governance, staffing difficulties and the anticipated new model.
5. The board had considered whether consultation was appropriate after concluding that the change was not substantial. It was entitled to regard formal consultation as neither required nor appropriate. No general common-law duty to consult arose because there was no legitimate expectation, promise, established practice or conspicuous unfairness.

First-instance judicial review in the Administrative Court. The application was dismissed.