Hinsull v NHS Dorset Clinical Commissioning Group

In judicial review of health-service reconfiguration, a decision-maker with broad statutory discretion must take reasonable steps to acquaint itself with relevant information. It need not leave no stone unturned or complete every implementation calculation before deciding. A relevant consideration may be addressed through continuing work after the decision, provided the decision-maker knows the risk and adopts a rational approach. An appellate court will not interfere where the lower court applied the correct legal principles and reached conclusions open on the evidence. A decision-maker may balance increased emergency travel times against expected improvements in service quality and patient outcomes. A process challenge cannot be used to reargue the merits or invite excessive judicial supervision of scarce-resource allocation.

Anna Hinsull challenged decisions by the Dorset Clinical Commissioning Group following a Clinical Services Review and formal consultation. The decisions reconfigured Dorset health services, including the closure of the Accident and Emergency unit at Poole Hospital, the proposed closure of its specialist maternity unit, and the designation of Royal Bournemouth Hospital as the major emergency hospital.

Sir Stephen Silber, sitting as a Deputy High Court Judge in the Administrative Court, dismissed all grounds of judicial review on 5 September 2018. On the application for permission to appeal, three issues remained: the sufficiency of the social-care workforce, the investigation required before introducing alternative community provision and closing hospital beds, and the effect of increased emergency travel times. The central question was whether the CCG and the judge below had acted unlawfully in process or had merely reached conclusions with which the appellant disagreed.

Permission to appeal was refused. The application was not arguable and there was no other compelling reason to grant permission. Lord Justice Bean and the Senior President of Tribunals agreed with Lady Justice Simler’s reasons.

1. Appellate approach. On an appeal from a judicial review decision, the appellate court should not interfere where the lower court applied the correct legal principles and reached conclusions open to it on the evidence. Reconsideration is justified only for a significant error of principle or a conclusion that should not have been reached.
2. Social-care workforce. The CCG’s broad discretion did not remove the need to consider workforce capacity. However, the evidence showed that the Governing Body understood the risk, adopted a strategy of continuing workforce development with partner organisations and accepted that implementation work would continue after the decisions. There was no statutory obligation to prepare workforce calculations or documents, particularly given the uncertainty of the relevant data. The challenge was a merits challenge presented as a process challenge.
3. Alternative community provision. The Tameside duty required reasonable steps to acquaint the decision-maker with relevant information. It did not require an exhaustive inquiry or that every implementation detail be settled in advance. In light of the detailed assessment, the interrelated nature of the reconfiguration and the CCG’s broad discretion, the judge was entitled to conclude that the duty had been met. The approach concerning NHS England’s satisfaction of the bed closure test was endorsed in Keep the Horton General v Oxfordshire Clinical Commissioning Group [2019] EWCA 645 (CA).
4. Travel times and clinical risk. The CCG obtained detailed transport evidence. Although increased journey times created potential clinical risk in approximately 0.6% of cases, the extent of that risk was unquantified. The judge did not treat 0.6% as the level of risk itself. The CCG was entitled to regard potential risk in a very small proportion of cases as approximating to an overall minimal clinical risk, and to balance that risk against the expected benefits of specialist services. Accessibility was one of six decision-making criteria and was not determinative. There was no arguable breach of section 14R of the National Health Service Act 2006.
5. Other matters and order. The judge should have permitted reliance on the argument concerning 60 lives saved annually, and the absence of a local-authority reference to the Secretary of State could no longer be relied on. Neither point was significant in the context of the evidence. The court applied the observation in R (Greenpeace) v Secretary of State for Trade and Industry [2007] Environmental Law Reports 29 that the possibility of improving consultation with hindsight does not, by itself, justify judicial review. The appellant was refused permission on all grounds and ordered to pay the respondent’s costs, subject to detailed assessment.

• Court of Appeal (Civil Division) On 7 August 2019, the application for permission to appeal was refused on all grounds. The appellant was ordered to pay the respondent’s costs, subject to detailed assessment.
• High Court of Justice, Administrative Court Sir Stephen Silber, sitting as a Deputy High Court Judge, dismissed the judicial review challenge on 5 September 2018.