Dawson, R (On the Application Of) v United Lincolnshire Hospitals NHS Trust

Section 242 of the National Health Service Act 2006 requires meaningful arrangements for service-user involvement in planning, developing and considering proposals for service changes, and in decisions affecting services. Involvement must ordinarily occur before proposals are finalised and before the decision is made. Information alone is sufficient only where it facilitates participation at the relevant stage. The extent of involvement depends on the proposal’s impact, duration and circumstances. Urgency or temporary status may justify attenuated arrangements, but only within narrow limits. Subsequent consultation cannot normally cure a failure to involve users during development and consideration. A failure to comply is not excused by general pressure on NHS resources without clear evidence. The court granted declaratory relief and rejected the separate challenge based on inadequate reasons.

The claimant challenged the Trust’s decision to designate Grantham and District Hospital as a Covid-19-free Green site, replace its Accident and Emergency department with an Urgent Treatment Centre, relocate services and withdraw beds. The decision was intended to operate from 22 June 2020 until at least 31 March 2021, subject to quarterly review.

She alleged breaches of section 242(1B)(b) and (c) of the National Health Service Act 2006, concerning involvement in the development and consideration of proposals and in the decision itself. She also alleged that the decision was inadequately reasoned, irrational or taken for an improper purpose. The principal issues were the timing and quality of the required involvement, the relevance of the Covid-19 emergency and temporary nature of the changes, the alternative-remedy provision, and whether the claim was academic.

1. Ground 1 upheld. The Trust breached section 242(1B)(b) and (c) of the National Health Service Act 2006. The statutory duty required arrangements securing a meaningful opportunity for service users to participate in the development and consideration of the Green-site proposal and in the Board’s decision.
2. Section 242 contemplates involvement before plans and proposals are finalised and before decisions are made. Later surveys, communications or opportunities to comment cannot ordinarily discharge the earlier duties. The form of involvement is not subject only to Wednesbury review. The question is whether the arrangements, viewed as a whole, secured meaningful involvement.
3. Involvement may be achieved by consultation, information or other methods. Information alone will usually be insufficient unless it facilitates participation. The degree required depends on the nature, impact and duration of the proposal or decision. Urgency, genuine short-term provisional decisions and immediate further involvement may justify a lesser degree of pre-decision involvement, but the scope for that approach is limited.
4. The Trust had a developed proposal by 12 May 2020 at the latest, yet it did not meaningfully involve service users in its development. The 3 June radio interview did not identify the proposed site. Publication of the Board paper on 8 June gave less than three days for written questions, and the public were principally observers at the meeting. These steps did not secure meaningful involvement in development, consideration or decision-making.
5. The pandemic and pressure on resources did not establish a principled exemption. Section 242 contained no pandemic defence, and the evidence did not show that resources prevented fuller involvement. The decision’s beneficial aspects and temporary label did not remove the duty, particularly given its significant adverse impact and expected duration.
6. The Trust failed to establish under section 31(2A) of the Senior Courts Act 1981 that it was highly likely that the outcome would not have been substantially different had lawful involvement occurred. Declaratory relief was therefore just and convenient.
7. Ground 2 dismissed. The Board paper and meeting explained the decision sufficiently. There was no proper basis to infer irrationality, bad faith or an improper purpose. The claim was not academic because the dispute and relevant legal issues remained live.

First-instance judicial review in the High Court (Administrative Court). No appellate history was stated in the judgment.