Glatter v NHS Herts Valleys Clinical Commissioning Group

The statutory duty imposed on NHS bodies is to secure public involvement in decision-making, not necessarily to conduct a formal public consultation. Consultation is one possible means of involvement, alongside providing information and engaging stakeholders through other appropriate methods. Guidance requiring fair and proportionate public involvement does not enlarge or alter that statutory duty. NHS bodies may rationally exclude options they consider unaffordable, provided the public has sufficient information to participate meaningfully. The common law does not impose an additional duty to consult merely because earlier, different processes involved public consultation. Where a procedural error is established, relief may be refused under section 31(2A) of the Senior Courts Act 1981 if it is highly likely that the outcome would not have been substantially different.

The claimant challenged two decisions by NHS Herts Valleys Clinical Commissioning Group, supported by West Hertfordshire Hospitals NHS Trust, concerning the reorganisation of hospital services. The first decision shortlisted four options and excluded new-build hospitals as unaffordable. The second selected a three-site redevelopment option involving Watford General, St Albans City and Hemel Hempstead hospitals.

The claimant argued that the bodies were required to conduct public consultation, disclose fuller financial information and consult on the proposed reconfiguration. Permission was granted by Johnson J on 2 October 2019, with the claim stayed while funding and alternative proposals were considered. The central issues were whether the statutory or common law duties required formal consultation and, alternatively, whether relief should be refused because the outcome would probably have been unchanged.

1. Claim dismissed. The two decisions were lawfully made and no relief was required.
2. The duty under sections 14Z2 and 242 of the National Health Service Act 2006 was a duty to secure public involvement in decision-making. Formal consultation was only one possible method. Other methods included providing information and engaging service users and stakeholders through meetings and representative groups.
3. NHS England guidance had to be taken into account under the 2006 Act, but it did not convert the statutory duty into an obligation to conduct a full consultation. References to fair and proportionate involvement replicated rather than expanded the statutory duty.
4. The claimant had not established a separate common law duty to consult. Earlier public consultations and involvement exercises concerned different proposals, occurred under changing statutory frameworks and did not create a sufficiently clear promise or settled practice.
5. The information supplied was sufficient in the circumstances. The claimant and others received headline cost figures and were able to challenge the affordability assumptions and the £350 million capital limit. The bodies were not required to disclose every underlying calculation or conduct an adversarial public examination of competing costings.
6. The second decision did not attract a consultation duty merely because the proposed changes might have amounted to a de facto closure or reconfiguration of services. The slide suggesting that some options would require consultation neither stated the law correctly nor materially influenced the selection of option 1.
7. Alternatively, if consultation had been required, section 31(2A) of the Senior Courts Act 1981 would have required relief to be refused. The court had to assess objectively the decision-making process, identify and remove the conduct complained of, and decide whether it was highly likely that the claimant’s outcome would have been substantially different. The substantial gap between the available funding and the cost of new-build options made that outcome highly unlikely.
8. The residual discretion to refuse relief for good administration remained, but would not independently have justified refusal here. Specific justification is normally required where a decision has been found unlawful. The statutory test in section 31(2A), rather than general administrative inconvenience, would have been the basis for refusing relief.

The judgment was a first-instance judicial review decision. Johnson J granted permission on 2 October 2019 and stayed the claim pending developments concerning funding and alternative options. The stay was later lifted, and the substantive claim was dismissed by the Administrative Court.