NHS service reconfiguration

The High Court has quashed proposed service reconfiguration in Corby. Alistair Robertson and Amy Smith look at the lessons to be learned.

In the latest challenge to a local NHS service reconfiguration exercise, the High Court has granted a judicial review of Corby CCG's plans to change services at an urgent care centre.

The case is a timely reminder to NHS commissioners of the vital importance of:

• getting patient involvement right;
• ensuring that any procedural promises made are kept; and
• demonstrably meeting equalities and health inequalities duties.

The decision requires the CCG to go back and run a lawful consultation exercise on its proposals, meeting its public sector equality duty and duty to have due regard to the need to reduce health inequalities.

In R (On The Application Of Lyn Buckingham) v NHS Corby Clinical Commissioning Board [2018] EWHC 2080 (Admin) (1 August 2018), Mrs Buckingham, a  local resident and founder member of the 'Save Corby Urgent Care Action Group' challenged the CCG's decision to change the provision of health services at the Urgent Care Centre in Corby and to rename it a Same Day Access Hub.  

She raised three grounds:

1. The CCG had publicly said that it would hold a full public consultation. She therefore had a legitimate expectation that the CCG would consult users or potential users of the Centre before making the Decision, and the CCG had failed to do so without good reason.
2. The failure to consult or at least involve such users was a breach of the duty imposed on the CCG to do so by section 14Z2 of the 2006 Act [1].
3. When making the Decision, the CCG failed to have due regard to the need to reduce inequalities between patients with respect to their abilities to access health services pursuant to section 14T and/or to the differential impacts on people with protected characteristics within the meaning of the Equality Act 2010 (the 2010 Act).

Each ground was disputed by the CCG but upheld by His Honour Judge Harman QC in his judgment on 1 August 2018.

The Judge:

1. Agreed that the CCG's promises to consult created a legitimate expectation, and that the CCG had departed from that legitimate expectation without good reason.
2. Did not accept that (without the legitimate expectation) section 14Z2 would necessarily have required the CCG to consult in this case, but did agree that the duty applied and that the CCG had not sufficiently involved patients and public in the consideration (as distinct from the development) of its proposals to the extent required by that section.
3. Upheld ground 3 on the basis that the CCG had not demonstrated that it had considered its duty to have regard to the need to reduce health inequalities (section 14T), and because the CCG's equality impact assessment envisaged that the CCG would collect further information (through consultation) and it did not ultimately do so.

This decision can be contrasted with Supperstone J's recent decision in R (British Homeopathic Association) v. NHS England [2018] EWHC 1359 (Admin) in which he found no breach of the public sector equality duty where the Defendant had taken detailed steps to raise awareness of the consultation, had engaged with Healthwatch to discuss how "hard to reach people could be reached" and had conducted an equality impact assessment ("EIA").

Key learning points for CCGs

Service reconfiguration remains very fertile ground for challengers. The judgment contains useful reminders that decision-makers:

1. Must be very careful not inadvertently to generate a legitimate expectation that some step (eg in this case, consultation) will be taken. If a promise is made, the decision-maker should think carefully before departing from that promise.
2. Must take care to involve the public not only in the development but also in the consideration of any proposals affecting service delivery.
3. Must ensure that they document their equalities analysis (including health inequalities) reflecting developments throughout a process, obtain extra relevant information where required, and that they consider and refer to their equalities analyses when making decisions.

Alistair Robertson is a partner and Amy Smith is a solicitor at DAC Beachcroft. Alistair can be reached on 020 7894 6020 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Amy can be contacted on 0117 918 2522 or This email address is being protected from spambots. You need JavaScript enabled to view it..

[1] All references in this alert to section numbers are references to the National Health Service Act 2006 unless stated otherwise.