A & Anor, R (On the Application Of) v South Kent Coastal CCG & Ors

Clinical commissioning groups have a broad discretion when reconfiguring health services. The duty to have regard to reducing inequalities in access and outcomes does not require services to be located in areas of high deprivation or dictate a particular result. Access means the ability to take advantage of and benefit from healthcare, not merely physical arrival at a hospital.

Public consultation duties extend to proposals for change, not every arguable option which the decision-maker has discarded as unviable, unrealistic or unsustainable. A consultation may be fair where the public can comment on other options and the decision-maker conscientiously considers those responses. Judicial review supervises legality, not the merits or clinical correctness of a multi-factorial commissioning decision.

The claimants sought judicial review of the decision by clinical commissioning groups to decommission acute stroke services at Queen Elizabeth the Queen Mother Hospital in Thanet and establish three hyper-acute stroke units elsewhere in Kent. The challenge concerned health inequalities, consultation, patient choice, equality duties, inquiry into prevention, workforce and travel times, and the effect on patient flows.

The decision followed a multi-year review, public involvement, formal consultation and an evidence-based decision-making process. The central issues were whether the defendants had complied with their statutory duties and the common law duty to consult, and whether the decision was irrational or inadequately informed.

1. Outcome. Permission to apply for judicial review was granted on grounds 1 and 5, but refused on the remaining grounds. The claim was dismissed.
2. Health inequalities. Section 14T of the National Health Service Act 2006 requires CCGs to have regard to the need to reduce inequalities in access and outcomes. “Access” means the ability to take advantage of and benefit from healthcare, rather than simply the ability to reach a hospital. The duty does not mandate locating services in deprived areas, require positive discrimination, or dictate a fixed outcome. It forms part of a suite of competing statutory duties and leaves substantial discretion to the commissioning body.
3. The defendants had considered deprivation, travel times and the effects on deprived communities. Their decision to give greater weight to clinical quality and outcomes was not a hard-edged question of law and disclosed no public law error.
4. Inquiry and merits. The defendants were entitled to rely on their workforce modelling, the relevant Trust evidence and Professor Rudd’s clinical opinion. The court would not re-evaluate clinical evidence, individual statistics or the merits of the service configuration absent a recognised public law error. Prevention initiatives formed a parallel strategy and were not a condition precedent to the acute-service reconfiguration.
5. Consultation. Under section 14Z2 of the 2006 Act and the common law, the defendants had to consult on proposals for change. Following R (Moseley) v Haringey London Borough Council [2014] UKSC 56 and R (Nettleship) v NHS South Tyneside CCG and anr [2020] EWCA Civ 46, they were not required to conduct full consultation on arguable discarded options which they reasonably regarded as clinically unsuitable. Passing reference to such alternatives would suffice. Here, the questionnaire and consultation process allowed views on QEQM and other options, and those views were considered.
6. Equality and travel. Two impact assessments addressed the effects of the proposed options on protected groups, including older and disabled people, and the decision-makers had the relevant evidence before them. The public sector equality duty was therefore complied with. The travel-time evidence was nationally recognised and did not establish irrationality or a failure to inquire.