Keep Wythenshawe Special Ltd v NHS Central Manchester CCG & Ors

In a statutory consultation on NHS service reconfiguration, fairness is assessed by statutory purpose and context, using the Sedley criteria: proposals must remain formative; sufficient information and reasons must be provided; adequate time must be allowed; and responses must be conscientiously considered. Re-consultation is required only where the difference between the consulted proposals and the intended decision makes proceeding unfair. A consultation is not a referendum, and a decision may turn on one criterion where the others do not differentiate. It is lawful to consider patients outside the authority’s statutory area and to rely on planned investment rather than historic clinical data where rationally justified. Legitimate expectations require a clear, unqualified representation, and rationality review remains limited.

The claimant, a company representing the interests of consultants at Wythenshawe Hospital, sought judicial review of a decision taken by the defendants through the Healthier Together Committees in Common. The decision selected Stepping Hill Hospital rather than Wythenshawe as the fourth Specialist Hospital in a proposed reconfiguration of acute hospital services in Greater Manchester.

The claimant alleged unfair consultation, breach of legitimate expectation and irrationality. The challenge concerned the treatment of travel and access, quality and safety, the weighting of decision criteria, and the effect on specialised services said to be co-dependent on emergency and high-risk surgery.

1. The claim for judicial review was dismissed. The court found no legal error in the unanimous decision to select Stepping Hill Hospital as the fourth Specialist Hospital.

2. The statutory duty under section 14Z2(2) of the National Health Service Act 2006 was directed to public involvement in planning, developing and deciding changes to commissioning arrangements. It prescribed no particular method, leaving a broad discretion subject to fairness. The court applied the four Sedley criteria identified in R v Brent London Borough Council ex p Gunning (1985) 84 LGR 168 and endorsed in R(Moseley) v Haringey London Borough Council [2014] UKSC 56.

3. Fairness depended on the purpose and context of the consultation. Re-consultation was not required merely because the analysis was refined after consultation. The relevant question was whether the difference between the consulted proposals and the intended decision made it unfair to proceed without further consultation. The travel analysis retained the same criterion and standards, and the enlarged catchment and actual-usage analysis were legitimate refinements.

4. The consultation was not a referendum. Responses had to be conscientiously considered but did not determine the result. All four criteria were considered, and it was lawful not to weight them. Since travel and access was the only criterion differentiating the final options, it was lawful for that criterion to decide the issue. The interests of patients outside Greater Manchester were relevant, notwithstanding the defendants’ statutory responsibilities.

5. It was rational to assume that planned investment would enable all options to meet the adopted quality standards and to refrain from relying on historic clinical outcomes as a guide to future performance. It was also rational to model travel using the existing highway network and to omit the proposed SEMMS road where future journey-time data would have been speculative.

6. The conclusions on co-dependent services were within the range of reasonable decision-making. References to general surgery did not necessarily require co-location with emergency and high-risk general surgery, and robust pathways or on-call arrangements could address the identified dependencies. The erroneous reference to the children’s cystic-fibrosis specification was immaterial because no relevant distinction had been shown.

7. The consultation did not need to identify every possible contingency, including the possibility that a provider might later decline to continue specialised services. The consultation was open enough for that issue to be raised, and the defendants had reasonably judged the risk to be remote. Legitimate expectation also failed because no clear, unambiguous and unqualified representation had been made: MFK Underwriting Agents [1990] 1 WLR 1545. The decision was not irrational under Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.