Nettleship, R (On the Application Of) v NHS South Tyneside Clinical Commissioning Group & Anor

A statutory duty to involve service users in NHS commissioning changes extends to genuine proposals for change. It does not require consultation on options considered unviable, unrealistic or unsustainable. Fairness may still require a passing reference to arguable discarded alternatives, and the information provided must permit an intelligent response. A court will respect a public authority’s evaluative balance between service quality, sustainability, risks and benefits unless it is Wednesbury irrational. Later policy or funding changes require reconsideration only where they fundamentally alter the assumptions underlying the decision.

The appellant sought judicial review of the respondents’ decision to reconfigure stroke, obstetric and gynaecological, and paediatric services so that the principal services would operate at Sunderland Royal Hospital rather than South Tyneside District Hospital. The Administrative Court dismissed the claim on seven grounds on 23 July 2019.

Permission was granted on four grounds concerning the scope and fairness of consultation under the National Health Service Act 2006, the adequacy of information, Wednesbury irrationality, and the effect of later changes to immigration policy and NHS funding. The central issues were whether the respondents had to consult on retaining the existing services and whether the later changes required the decision to be reconsidered.

The Court of Appeal unanimously dismissed the four grounds of appeal. Lady Justice Nicola Davies gave the leading judgment. Lord Justice Jackson agreed with both judgments, and Sir Andrew McFarlane P agreed with Lady Justice Davies while adding procedural observations.

1. Scope of the consultation duty. Section 14Z2(2)(b) of the National Health Service Act 2006 required involvement in the development and consideration of genuine proposals for changes. It did not require consultation on options which the CCGs considered unviable, unrealistic or unsustainable and therefore did not treat as proposals for change. That interpretation was consistent with the Service Change Guidance, the Participation Guidance and R (Kidderminster and District Community Health Council) v Worcester Health Authority [1999] EWCA Civ 152.
2. Fairness and discarded alternatives. The common-law principles in R v Brent London Borough Council, Ex parte Gunning (1985) 84 LGR 168 applied. The statutory framework limited the consultation to realistic and viable options. Accordingly, the principle identified in R (Moseley) v Haringey London Borough Council [2014] 1 WLR 3947 required no more than a passing reference to arguable but discarded alternatives. The Issues Paper, PCBC and later consultation document sufficiently identified the retain-services option.
3. Information and intelligent response. The CCGs supplied sufficient information and opportunities for engagement to enable intelligent comment and response. Their process involved genuine engagement, explained why existing services were not viable, and conscientiously considered the consultation feedback.
4. Rationality. The decision was a balancing exercise between identified risks and anticipated benefits. The respondents’ primary concern was improved services rather than cost reduction, and describing the changes as cost-neutral did not make the decision Wednesbury irrational.
5. Changed circumstances. The removal of doctors and nurses from the immigration cap and the announcement of additional NHS funding did not fundamentally alter the assumptions underlying the decision. They therefore provided no basis for requiring the decision to be remade.

Procedural guidance

McFarlane P stated that, under CPR r 40.7(1), the full extempore judgment took effect when given in December 2018. The later corrected transcript was not the date on which the decision was made, although the judge was entitled, and where necessary obliged, to refine the transcript so that it accurately recorded the judgment. The substance rather than the form of a judicial act determines whether an order has been made and is appealable.

1. Court of Appeal (Civil Division) — The appeal was dismissed on all four grounds: [2020] EWCA Civ 46.
2. Queen’s Bench Division, Administrative Court — HHJ Mark Raeside QC dismissed the judicial review claim on 23 July 2019.