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Court of Appeal rejects challenge to consultation on planned bed closures at Oxfordshire hospital

The Court of Appeal has dismissed an appeal by campaigners over proposed bed closures at Horton General Hospital in Oxfordshire.

The judicial review challenge over a transformation consultation undertaken by the Oxfordshire Clinical Commissioning Group (CCG) had originally been led by Cherwell District Council, with support from South Northamptonshire Council, Stratford-on-Avon District Council and Banbury Town Council acting as co-claimants.

However, Mr Justice Mostyn in the High Court dismissed their claim in December 2017.

The Keep the Horton General (KTHG) group, acting by its chairman Keith Strangwood, then pursued an appeal (the councils did not participate in the appeal). It put forward for grounds of challenge:

  1. The judge erred in failing to consider properly the fairness of the consultation in view of the bed closure proposals being the subject of phase 1 while the subject of community provision (including such provision as alternative to hospital care) was not to be consulted upon until phase 2.
  2. While the judge found a flaw in the consultation in its failure to put NHS England's new "bed closure" test to the consultees, he did not find that the flaw was "sufficiently serious" to render the consultation unlawful.
  3. The CCG failed properly to set out in the consultation materials the "pros" and "cons" of the bed closure proposals. While stating the "pros", it did not identify the "cons".
  4. The judge improperly admitted into evidence a new witness statement from the CCG on the afternoon of the second day of the two day hearing and after the parties had concluded their arguments.

However, in Keep the Horton General v Oxfordshire Clinical Commissioning Group & Anor [2019] EWCA Civ 646, the Court of Appeal (the Master of the Rolls Sir Terence Etherton, Lord Justice McCombe and Lord Justice Lindblom) upheld the ruling that the consultation was lawful.

Louise Patten, Chief Executive at Oxfordshire Clinical Commissioning Group, said: “We are pleased with the decision of the court. We can now move on and continue to work closely with clinicians and the community in the Banbury area to develop services at the Horton General Hospital.

“We have learned much from this experience and recognise the importance of working together to understand local people’s health needs and then to plan together the services that are required to meet those needs. I personally feel that the Horton General Hospital has a vibrant future and look forward to working better with the community for the benefit of patients.”

KTHG said it would “continue the fight” by providing evidence to the Horton Health Overview and Scrutiny Committee and by gathering information on other small units in England and Wales to see how consultant-led units were run successfully elsewhere.

It did, however, highlight Lord Justice McCombe’s criticism of the manner in which the CCG produced late evidence on the final day of the High Court hearing, which turned out to be materially relied on by the Court, as being "clearly highly unsatisfactory" and remarked that the CCG repeated the same mistake just before the Court of Appeal hearing.

KTHG’s legal team sought to argue that, given the nature of the interdependency between the proposed bed closures and the provision of community facilities, the CCG should not have waited to consult on community facilities in phase two, when it had planned to made a final decision on bed closures after phase one and before phase two.

Rowan Smith, lawyer at Leigh Day who has represented KTHG throughout the legal action, said: "Although KTHG was not able to achieve its ultimate aim of forcing a fresh consultation, we hope that this legal challenge has made the CCG sit up and take notice of the strength of feeling in the community and we trust that it will listen to their views more readily in the future."