British Homeopathic Association, R (On the Application Of) v National Health Service Commissioning Board

A consultation is lawful where it gives consultees sufficient information to understand the proposal, the reasons for it and the response sought. It need not present every opposing argument or all available evidence. A decision maker may form a provisional view before consultation, provided it remains willing to reconsider the proposal in light of consultees’ responses.

The public sector equality duty requires rigorous and conscientious consideration of the statutory equality objectives, but does not require the court to re-weigh the decision maker’s assessment. A public authority may issue guidance under a general assistance power where the guidance supports the exercise of its statutory functions and is not guidance on a different, specifically regulated function.

The claimant sought judicial review of a consultation by National Health Service Commissioning Board concerning items not routinely prescribed in primary care and of the subsequent guidance issued to clinical commissioning groups in relation to homeopathy.

The claimant alleged unfair consultation, consultation before the proposals were sufficiently formed, predetermination or bias, breach of the public sector equality duty under the Equality Act 2010, and lack of statutory power to issue the guidance. The court also considered the relationship between the general powers in the National Health Service Act 2006 and the specific guidance power concerning clinical commissioning functions.

1. Outcome. Permission was granted on all four grounds, but none was made out. The claim was dismissed.
2. Fair consultation. Applying the principles in R (Moseley) v Haringey LBC and R v Brent LBC, ex p Gunning, the consultation provided sufficient information for an intelligent and meaningful response. Consultees were told that the proposal concerning homeopathy rested on a lack of robust evidence that it worked and were given an open-ended opportunity to agree, disagree or provide further information. The consultation was not required to set out every argument against the proposal or to present all opposing evidence. The Select Committee report was sufficiently intelligible and its use did not make the consultation unfair.
3. The decision maker was required to identify alternatives only where that was necessary for fairness. That threshold was not met. Consultees were able to argue that homeopathy should be excluded altogether or subject to different recommendations.
4. Formative stage, bias and predetermination. The relevant question was whether the authority had already decided to adopt the proposal or remained willing to reconsider it. The robust public statement describing homeopathy as a placebo did not establish predetermination or bias. Read as a whole, the press release expressed a provisional view. The authority engaged with the responses, commissioned a further evidence review and considered the matter before taking the final decision.
5. Equality duty. Under section 149 of the Equality Act 2010, the decision maker had to consider the statutory equality objectives with rigour, with an open mind and before deciding the issue. The equality analysis demonstrated that the Board had addressed the relevant matters. The court could not substitute its assessment of weight for that of the Board. It was proportionate not to undertake a separate review of every prescription form to identify protected characteristics.
6. Vires. Section 14Z8 of the National Health Service Act 2006 concerned guidance on clinical commissioning functions. The guidance here assisted clinical commissioning groups in supporting and guiding primary care prescribers and was not guidance on their commissioning functions. Section 14Z10 therefore authorised it. In any event, section 2 authorised conduct calculated to facilitate or assist the Board’s statutory functions, including securing primary medical services and continuous improvement in those services.

This was a first-instance judicial review in the Administrative Court. The judgment does not state any prior appellate decision.