Hinsull, R (On the Application Of) v NHS Dorset Clinical Commissioning Group

A clinical commissioning group has a broad discretion when deciding how to commission health services and how intensively to investigate relevant factors. Judicial review does not require the court to substitute its assessment for that of the decision-maker. A consultation will be unlawful only where the flaw is materially and clearly serious. The Tameside duty requires reasonable steps to obtain relevant information, but its scope is context-specific. NHS England’s bed closure test applied to proposals not yet through the entire assurance process, although it did not create a further duty to consult. The court upheld the CCG’s assessment of workforce capacity, alternative provision, travel risks and consultation information.

The claimant sought judicial review of decisions made by Dorset Clinical Commissioning Group on 20 September 2017 to reorganise health services. The changes included making Bournemouth Hospital the major emergency hospital, making Poole Hospital primarily a planned hospital, closing or relocating some specialist services, and developing integrated community services.

The claimant alleged failures to consider the social care workforce, investigate alternative community provision, apply NHS England’s bed closure test, assess travel risks, and conduct a fair consultation. Permission was renewed for the consultation ground. The central questions were whether the CCG had acted within its statutory and public law powers and whether any consultation defect was sufficiently serious to invalidate the decisions.

1. All claims dismissed. Permission was granted to pursue the consultation issue, but the claim and all other grounds of judicial review were dismissed.
2. The CCG had considered the sufficiency of the social care workforce. It was entitled to rely on continuing workforce development, collaboration with local authorities and healthcare providers, modelling, and the Workforce and Capability Plan. The governing body was aware that workforce issues would continue during implementation. The absence of complete workforce calculations did not make the decision Wednesbury unreasonable.
3. The duty identified in Khatun v Newham BC gives the decision-maker, subject to Wednesbury review, discretion over the manner and intensity of inquiry into relevant factors. The scope of the Tameside duty is context-specific. The CCG had considered numerous models and 65 potential options, obtained external assurance, and was not required to conduct every further investigation suggested by the claimant.
4. The NHS England bed closure test applied because the entire NHS England assurance process had not been completed before 1 April 2017. The test was guidance under section 14Z8 of the National Health Service Act 2006. There was no obligation to consult separately on the test. NHS England, as the body responsible for deciding whether the test was satisfied, had confirmed that the CCG had considered it and that sufficient alternative provision had been examined.
5. The CCG had adequate information on travel times and was entitled to regard the potential additional clinical risk identified in the SWAST analysis as minimal. It could balance increased journey times against the expected benefits of specialist services and improved outcomes. Its approach to the accessibility criterion was lawful.
6. The consultation material did not promise permanent on-site 24-hour consultant cover. References to consultant availability were expressed as an ambition and had to be read with the glossary and the consultation document as a whole. The CCG was not responsible for determining the number of beds provided by NHS trusts and was not required to consult on that issue. No consultation defect was clearly and radically wrong or irretrievable.

First-instance judicial review proceedings in the High Court (Administrative Court). The judgment itself states no appellate history.