Cherwell District Council & Ors v Oxfordshire CCG

Consultation is lawful where it is conducted while proposals remain formative, gives sufficient reasons for intelligent consideration, and fairly presents the proposal and its material consequences. A consultation may be divided into phases, but decisions in an earlier phase must not materially pre-determine or heavily influence later proposals. The court assesses fairness contextually and focuses on the materiality of alleged defects. A proposer need not consult expressly on every plausible alternative where the proposal itself sufficiently identifies the general choice. An omission will invalidate the process only where the resulting unfairness is significant.

Local authorities and the interested party challenged Oxfordshire CCG’s consultation on proposed changes to services at the Horton General Hospital. The consultation covered bed closures, maternity and emergency gynaecology services, critical care and acute stroke services, and was divided into two phases. The claimants alleged unfairness because the phases were interdependent, the information was misleading or incomplete, and the CCG had failed to consult on a new bed-closure test. The interested party also challenged the subsequent implementation decision on irrationality grounds. The central issues were whether the consultation or implementation decision was unlawful.

1. Claim dismissed. Fairness in consultation is context-specific and must be assessed by reference to the purposes of consultation. Relevant considerations include whether proposals remain formative, whether sufficient reasons and accurate information are given, whether the proposal’s advantages and disadvantages are fairly presented, and whether any defect causes significant unfairness.
2. Dividing consultation into phases is not inherently unfair. Decisions in the first phase must not materially pre-determine or heavily influence decisions in the second. The evidence showed that the relevant patient numbers were too small to have any material bearing on later decisions about paediatric, A&E or anaesthetic services.
3. The maternity proposals were not misleading. The consultation made clear that obstetric services would be removed from the Horton General Hospital, that a midwife-led unit would remain, and that those wanting an obstetric unit or nearby obstetricians would need to travel to the John Radcliffe.
4. The failure expressly to include the additional bed-closure test was a flaw. However, the consultation had in substance addressed the relevant matters, and the omission was not sufficiently material to invalidate the process.
5. There was no general duty to consult expressly on every plausible alternative. The constitutional complaint under section 14Z2(3) was a technical irrelevance.
6. The challenge to the implementation decision failed under the stringent Wednesbury standard. The ambulance arrangement was effectively a trial, and the decision did not determine what would happen when the one-year contract expired.

First-instance judicial review proceedings. No prior decision is stated in the judgment.