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

The claimant sought judicial review of the Welsh Minister's decision of 24 September 2013 to replace the Accident and Emergency department at Prince Philip Hospital, Llanelli, with an ENP-led and GP-supported model, following a referral by the Community Health Council under regulation 27 of the Community Health Councils (Constitution, Membership and Procedures) (Wales) Regulations 2010. The court considered whether the Minister misunderstood the CHC's position (error of fact), whether there had been failure to have due regard to the public sector equality duty in section 149 of the Equality Act 2010, and whether the Minister had acted lawfully in relation to consultation and his scope of discretion on a CHC reference.

The judge refused permission on the argument that the Minister had misunderstood the CHC (error of fact) because contemporaneous documents showed the Scrutiny Panel and the Minister understood and endorsed the CHC's preference for doctor-led presence, and refused permission on the equality ground because no relevant protected characteristics were shown to be engaged and no arguable failure to have due regard was identified. Permission was granted to proceed on grounds challenging the lawfulness of the Minister's approach to consultation and the scope of his discretion on a CHC reference (grounds A, B and D) as arguable and of public importance.

The claim challenged the Welsh Minister's decision to adopt an ENP-led and GP-supported urgent care model at Prince Philip Hospital after a CHC referral under regulation 27 of the 2010 Regulations. The claimant, a local campaigner, sought judicial review of the Minister's decision on several grounds: that the Minister and Scrutiny Panel misunderstood the CHC's insistence on a 24/7 doctor presence (error of fact); that the Minister had failed to comply with the public sector equality duty in section 149 of the Equality Act 2010; and that the Minister had acted unlawfully in relation to consultation and in the exercise of his discretion on the CHC referral (including whether he should investigate alleged consultation defects and whether he could rely upon a potentially unlawful LHB decision).

The court reviewed the factual materials: the LHB consultation, the CHC referral letters asserting a requirement for a doctor on site 24/7, the Scrutiny Panel report recommending an ENP+GP model with on-site doctor staffing, and the Minister's decision letter endorsing that recommendation. On the error of fact ground the court concluded, on the contemporaneous documentary record, that neither the Panel nor the Minister misunderstood the CHC's position and that the Minister had in substance adopted a model involving clinical leadership and doctor presence; that ground was therefore unarguable at the permission stage.

On the equality ground the court applied the test in the authorities as to when section 149 is engaged and observed that the claimant had not identified relevant protected characteristics realistically engaged by the decision; the Panel's recommended model in fact addressed concerns about transfers that might have impacted elderly, disabled or low income groups. The court concluded the claimant had not shown an arguable breach of section 149.

On the consultation-related grounds (A, B and D) the court considered issues about the scope of the Minister's discretion under regulation 27 and the extent of his duty to inquire into alleged consultation defects (including whether he could rely on an LHB decision said to be tainted by inadequate consultation). The judge found those grounds to be arguable, that they raised matters of wider public importance about the relationship between Local Health Boards, Community Health Councils and the Welsh Ministers, and granted permission to proceed to a substantive hearing on those grounds. The judge emphasised the low threshold at the permission stage and that the substantive issues warranted full argument.

At first instance the court refused permission to proceed on the claimant's grounds that the Minister had misunderstood the CHC's position (error of fact) and that he had breached the section 149 Equality Act 2010 duty, because the contemporaneous documents showed the Panel and Minister understood and intended a doctor-led/clinically-led service and no arguable equality duty breach was identified. The court granted permission to proceed on the claimant's other grounds (challenging the Minister's approach to consultation and scope of discretion on a CHC reference) as arguable and of wider public importance; the claim will proceed to a substantive hearing on those grounds.