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

The claim challenged the decision of Clinical Commissioning Groups to reconfigure acute stroke services in Kent and Medway by creating three hyper-acute stroke units (HASUs) and closing the stroke unit at Queen Elizabeth the Queen Mother Hospital (QEQM), Thanet. The claimants alleged multiple public law errors including failures to have proper regard to the duty to reduce health inequalities under section 14T of the National Health Service Act 2006, failures of consultation contrary to section 14Z2 and the common law (Gunning/Moseley principles), breach of the public sector equality duty under section 149 of the Equality Act 2010, and failures to inquire adequately into prevention, workforce and travel-time impacts.

The court held that the defendants had followed a multi-stage, evidence-based review, had considered health inequalities, equality impacts and travel times, and had carried out a wide programme of public involvement and consultation. The court accepted the clinical and workforce evidence (including the assessment that three HASUs were optimal) and concluded there was no public law error in the evaluation or in the decision to implement Option B. Permission was granted on limited grounds but the substantive claim was dismissed.

This is a judicial review of a decision taken on 14 February 2019 to reconfigure stroke services in Kent and Medway by establishing three HASUs at Darent Valley, Maidstone and William Harvey hospitals and closing the QEQM stroke unit in Thanet. The first claimant is an anonymous Thanet resident with raised stroke risk; the second claimant is a Ramsgate resident at high stroke risk. The claims were supported by a local campaign group and by Medway Council as an interested party.

Nature of the application and relief sought:

• The claimants sought quashing of the defendants' decision and contended it was unlawful on multiple public law grounds including failures of consultation, breaches of statutory duties in the NHS Act 2006 (notably s.14T on health inequalities and s.14Z2 on public involvement), breach of the public sector equality duty (s.149 Equality Act 2010), and failures to make adequate inquiries concerning prevention measures, workforce capacity and travel-time impacts.

Issues framed by the court:

• Interpretation and application of duties under the NHS Act 2006 including s.14T, s.14R, s.14V and the duty to involve in s.14Z2;
• Whether the public consultation complied with the Gunning/Moseley principles and the statutory involvement duties;
• Whether the defendants had due regard to the PSED under s.149 EqA 2010;
• Whether there was a failure of inquiry or irrationality in relation to prevention, workforce and travel-time evidence;
• The scope of judicial review in challenging clinical and service configuration judgments.

Court’s reasoning and conclusions:

• The court stressed the multi-factorial nature of commissioning decisions under the 2006 Act and the broad discretion afforded to CCGs. It rejected the claimants' narrow reading of s.14T as requiring localisation of services in deprived areas and accepted that "ability to access" means ability to benefit from treatment rather than mere arrival at a building.
• The review process, including pre-consultation work, integrated impact assessments, workforce modelling and public involvement, was held to be lawful and sufficiently rigorous. The clinical evidence supporting three HASUs (including workforce limits and the need for minimum patient volumes) was accepted as unimpeachable on public law grounds.
• On consultation, the court concluded consultees were given a fair opportunity to comment, that the shortlisted options constituted "proposals for change" within s.14Z2, and that the consultation documents and questionnaire expressly invited comments on other options (including QEQM). Nettleship was applied to confirm no duty to consult on discarded, unviable options beyond passing reference.
• The claim under the PSED failed because substantial IIAs had been carried out addressing protected groups and equality impacts and those assessments had been before decision-makers.
• Challenges based on alleged failures in inquiries into prevention, workforce recruitment and marginal differences in travel time were held not to disclose public law error. The claim was dismissed, though permission was granted on limited grounds earlier in the process.

The judgment emphasised the supervisory (not merits) role of the court in health service reconfiguration and the need to respect the evaluative judgments of commissioners where no legal error is established.

The claim is dismissed. The court found no public law error in the defendants' decision to reconfigure stroke services: the commissioners had lawfully considered health inequalities under s.14T, complied with public involvement and consultation duties under s.14Z2 and the common law, met the public sector equality duty under s.149 EqA 2010 through integrated impact assessments, and were entitled to rely on clinical and workforce evidence that supported three HASUs; challenges about prevention, workforce interrogation and travel-time impacts did not disclose an arguable public law error.