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

The claimant, the British Homeopathic Association, sought judicial review of NHS England's consultation document on items that should not routinely be prescribed in primary care and of NHS England's subsequent guidance to Clinical Commissioning Groups in respect of homeopathy. The claimant advanced grounds of unfair consultation (applying the Gunning principles), consultation at a non-formative stage and predetermination, breach of the public sector equality duty under s.149 of the Equality Act 2010, and (late in the proceedings) that NHS England lacked vires to issue the guidance under s.14Z10 of the National Health Service Act 2006.

The court held that the consultation material provided sufficient information to enable consultees to respond intelligently, that NHS England consulted at a formative stage and did not predetermine the matter, and that NHS England complied with its public sector equality duty in a rigorous and documented way. On the vires point the court found that NHS England was entitled to rely on s.14Z10 and, in any event, on the general power in s.2 of the 2006 Act. Permission was granted on all grounds but the claim was dismissed.

Background and relief sought: The claimant challenged NHS England's consultation paper published 21 July 2017 and the decision of NHS England of 30 November 2017 to issue guidance to CCGs recommending that homeopathic treatments should not be initiated for new patients and should be deprescribed for existing patients. The claim was a judicial review application seeking to quash the consultation and/or the Guidance or otherwise obtain relief for failures in process and legality.

Parties and factual posture: The claimant is a charity promoting access to homeopathy. NHS England developed the guidance following work with NHS Clinical Commissioners and a Joint Clinical Working Group which assessed a basket of products. Homeopathy was treated as an item of low clinical effectiveness. The claimant participated in the consultation, submitted evidence in support of homeopathy and attended engagement meetings. Following consultation NHS England commissioned the Specialist Pharmacy Service to review evidence and an Equality and Health Inequalities Analysis was prepared and updated.

Issues framed: (i) Whether NHS England failed to consult fairly by not providing sufficient information for consultees to respond intelligibly to the proposals (Gunning (2)); (ii) whether NHS England consulted at a time when proposals were not formative or had predicated its decision (Gunning (1) / predetermination / bias); (iii) whether NHS England breached the public sector equality duty under s.149 of the Equality Act 2010 in preparing and taking the decision; and (iv) whether NHS England had power (vires) under s.14Z10 (or s.2) of the National Health Service Act 2006 to issue the Guidance.

Court’s reasoning and conclusions: On consultation fairness the court applied the established Gunning/Coughlan principles and concluded the consultation was intelligible and sufficiently informative: consultees were told the central rationale (lack of robust evidence of clinical effectiveness), were given an opportunity to supply evidence and the claimant in fact submitted evidence prompting further review. On timing and predetermination the court accepted that NHS England was entitled to a provisional view before consultation and that subsequent conduct (engagement meetings, commissioning of the SPS review and public Board decision) showed willingness to consider further evidence; there was no real possibility of predetermination or bias. On equality duties the court examined the updated Equality and Health Inequalities Analysis and related papers, held that NHS England gave conscientious, recorded consideration to protected groups and that the PSED was discharged; the complaint about the consultation being online was dismissed (and raised late). On vires the court rejected the argument that s.14Z8 excluded reliance on s.14Z10, concluding guidance to assist CCGs could fall within the assistance/support power in s.14Z10 and, in any event, s.2 provided a sufficient general enabling power. The claim was dismissed on its merits though permission was given on all grounds.

Procedural note: The hearing was a rolled-up hearing ordered by Yip J; the claimant abandoned some pleaded grounds and did not pursue expert evidence it had sought to rely upon, which narrowed the contested issues.

The claim is dismissed. The court held that (1) the consultation complied with the Gunning fairness requirements and provided sufficient information to permit intelligent responses; (2) NHS England consulted at a formative stage and there was no real risk of predetermination or bias; (3) NHS England complied with its duties under s.149 of the Equality Act 2010, having given rigorous, recorded consideration to equality impacts; and (4) NHS England had power to issue the Guidance, relying on s.14Z10 and, alternatively, the general power in s.2 of the National Health Service Act 2006.