Fudge, R (on the application of) v South West Strategic Health Authority & Ors

This is the judgment of the Court. This appeal raises questions as to when a duty arises under s.11 of the Health and Social Care Act 2001, set out in Paragraph 30. The duty is to make arrangements to secure public involvement in and consultation on proposals relating to National Health services. The appeal is also concerned with the content of that duty. The Department of Health proposed to introduce Independent Sector Treatment Centres to provide diagnostic services and pre-planned operations, in Avon, Gloucester and Wiltshire, amongst other regions in England. For this purpose, between August 2005 and August 2006, the Department conducted procedures for the selection of a preferred bidder to provide an Independent Sector Treatment Centre.

The claimant contended that, during that period, the South West Strategic Health Authority or the South Gloucestershire Primary Care Trust were obliged to involve the public in or consult about the process on which the Department was engaged. The Department advised that no such obligation had arisen. The alleged failure to engage the public should, so she asserted, lead to the court quashing the decision to select UK Specialist Hospitals as preferred bidder.

Calvert-Smith J concluded that an obligation, under s. 11, had arisen at an earlier stage, when the Strategic Health Authority was itself putting forward proposals for an Independent Sector Treatment Centre, but that no such obligation arose once the Department took the lead in developing such proposals and considering tenders for the provision of such a Centre. He refused the application for judicial review but he himself gave permission to appeal, with unfortunate consequences.

The Secretary of State is under an obligation to provide medical services and such other services and facilities as are required for the diagnosis and treatment of illness (s.3(1) of the National Health Service Act 1977). Those functions are exercisable by Primary Care Trusts (Regulation 3(2)(a) and Schedule 1 of the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements (England) Regulations 2002). The functions of the Secretary of State relating to the health service are also exercisable by Strategic Health Authorities but:-

“only to the extent necessary to support and manage the performance of Primary Care Trusts in the exercise of those functions” (see Regulation 3(2)(b)).

The bodies through which information can be provided and with which consultation may take place are the Overview and Scrutiny Committees and the Patients’ Forum. The Overview and Scrutiny Committees were established by s.7 of the Health and Social Care Act 2001 and their function identified in Regulation 4 of the Local Authority (Overview and Scrutiny Committee Health Scrutiny Functions) Regulations 2002 (SI 2002 No. 3048). Regulation 4(1) provides:-

“Where a local NHS body has under consideration any proposal for a substantial element of the health service in the area of a local authority, or for a substantial variation in the provision of such service, it shall consult the OSC of that authority.”

Bodies known as the Patients’ Forums were established by s.15 of the National Health Service Reform and Health Care Act 2002 to monitor and review the range and operation of services provided by the Primary Care Trust for which a particular Patients’ Forum is established and to obtain the views of patients and carers about such matters. They were also required to make available to patients and carers advice and information about such services (s.15(3)). Other functions are imposed upon a Patients’ Forum by s.16, in particular to promote the involvement of members of the public, consultations or processes leading or potentially leading to decisions by Strategic Health Authorities and Primary Care Trusts and the formulation of policies by them (s.16(3)(a)). There also exist regulations amplifying the functions of a Patients’ Forum in the Patients’ Forum (Functions) Regulations 2003.

The history of the Secretary of State’s decision to select UK Specialist Hospitals as preferred bidder for an Independent Sector Treatment Centre in Avon, Gloucestershire and Wiltshire is of direct significance to the issue whether an obligation within s.11 was triggered. The sequence of events will also indicate the nature of any such obligation. But it is important that we do not become submerged in the detail of that history.

At the end of 2002, the Government decided to commission a number of Independent Sector Treatment Centres to provide diagnostic tests and pre-booked surgery (called “elective procedures”). Such treatment is to be distinguished from emergency treatment. The purpose of these proposals was to reduce patient waiting times and to stimulate competition. After the first centres began operating in September 2003, an NHS improvement plan was developed in 2004, designed so that patients should be able to choose from four to five providers for treatment of the kind we have described. The objective was to confer a right on patients, by 2008, to choose from any health care provider which met the appropriate standard and which could provide care within the price that the NHS would pay.

It is important to observe that this promotion of Independent Treatment Centres was the province of central government in pursuance of its general NHS policy. It forms the background to the subsequent participation of Strategic Health Authorities and Primary Care Trusts.

In early 2005, Strategic Health Authorities were asked to make proposals for the use of the independent sector within their areas. Accordingly, from early 2005 to August 2005, the South West Strategic Health Authority put forward its proposals for Independent Sector Treatment Centres within the area for which it was responsible. But, on 22 August 2005, the Secretary of State notified the Strategic Health Authority that its proposals would not be pursued but rather, a scheme for Avon, Gloucestershire and Wiltshire would be devised by central government.

The claimant placed some reliance upon the detail of the events leading to the rejection of the Strategic Health Authority’s proposals. She asserted that since it was common ground that a s.11 obligation was triggered during the period when the Strategic Health Authority was advancing proposals, it must follow that the obligation also arose in the later period, notwithstanding that central government was by then taking the lead. The judge accepted that a s.11 obligation did arise during that earlier period.

We do not accept that consideration of the earlier period is of assistance. It was never common ground that a s.11 obligation was engaged in the period in 2005 in which the Strategic Health Authority was advancing its own proposals. We were told by the respondents, and we accept, that it was not even argued before the judge. Certainly, it was not the subject matter of the judicial review. The grounds relate to the Secretary of State’s own scheme for Independent Sector Treatment Centres and not to the Strategic Health Authority’s earlier proposals. The judge ought not to have been tempted into reaching any conclusion on it. Of course, had there been agreement that a s.11 obligation was triggered during that period, that would have provided support for the assertion that the obligation applied later when the proposals were those of central government. But since that is not the position it is unnecessary for us to deal with the earlier period further, save in one respect.

During the same period up to August 2005, there was anxious debate and concern as to the development of the Bristol Health Services Plan. Part of the plan was a decision to alter the status of Bristol’s Frenchay Hospital from an acute to a community hospital. We must emphasise that that decision is not the subject matter of this judicial review. It never could have been, since the decision was the subject of proper public consultation and it has never been impugned. The decision has nothing to do with these proceedings. But we refer to it because the grievance felt about that decision appears to have prompted the claimant to bring these proceedings. The evidence comes nowhere near establishing that there is any connection between the decision as to Frenchay Hospital and the decision in relation to an Independent Sector Treatment Centre. But dismay at the downgrading [what has occurred in relation to the alteration of the status] of Frenchay Hospital [from an acute to a community hospital] has prompted the claimant’s assertions of illegality in relation to the process by which the Secretary of State decided to select an independent sector treatment centre for Avon, Gloucestershire and Wiltshire.

We turn, then, to the period between 22 August 2005 and 4 August 2006 when UK Specialist Hospitals Limited was selected as preferred bidder.

This period is crucial to determination of the issue whether the obligation under s.11 was triggered. On 22 August 2005 the Department of Health wrote to the South West Strategic Health Authority rejecting its proposals for procurement of an independent sector scheme and notifying the Strategic Health Authority that it would itself assume responsibility for procuring an independent sector treatment centre worth £37.5m, about 1.5% of the Strategic Health Authority’s budget for the area of Avon, Gloucestershire and Wiltshire.

We have been furnished with a detailed account of the procurement process by the head of the Central Clinic Procurement Programme, Sean Kelleher. It is unnecessary to record more than that it started with the provision of information in relation to individual schemes, the preparation of a short list of interested bidders who responded to questionnaires, invitations to negotiate, evaluation of bids received, and selection of a preferred bidder. Thereafter, negotiations took place with the potential provider leading, it was hoped, to a formal contract.

The importance of this sequence of events relates to the participation by the South West Strategic Health Authority and the South Gloucestershire Primary Care Trust in that process. As we shall see, since the obligation under s.11 is imposed on the Strategic Health Authority and the Primary Care Trust, it is only by analysis of their participation in the process that any conclusion can be reached as to whether any, and if so, what, obligation arose under s.11 in the instant case. The views of the South West Strategic Health Authority and, through the medium of that authority, of Primary Care Trusts within the region for which the Strategic Health Authority was responsible, were sought in relation to three features of the proposed independent sector treatment centre. Firstly, they were sought in relation to what is described as “the case mix” showing what type of diagnostic tests and pre-booked surgery (“elective procedures”) it would be appropriate for the independent sector to provide in Avon, Gloucestershire and Wiltshire. Secondly, representations were made in relation to the maximum distance a patient might be required to travel to receive such elective treatment within the area. Finally, in the early stages of the procurement process, there was discussion as to the location for treatment centres. By the end of November 2005 it was decided that bidders should be free to propose their own locations. Those three aspects of the procurement system demonstrate the nature and extent of involvement of the Strategic Health Authority and the relevant Primary Care Trusts.

We should deal separately with the role played firstly by the South West Strategic Health Authority and secondly by the South Gloucestershire Primary Care Trust. Once the Strategic Health Authority had been told, on 22 August 2005, that it was the Department which would procure the new £37.5m scheme from the independent sector in Avon, Gloucestershire and Wiltshire, this information was passed by Christina Craig, the Director of Provider Development for the South West Strategic Health Authority, to chief executives of the Primary Care Trusts and Acute Trusts within the area of Avon, Gloucestershire and Wiltshire. They were asked for their views in relation to, amongst other things, the case mix and location of the proposed treatment centre. A letter, dated 24 August 2005, identified key issues for discussion, noting that the area did not have a problem in relation to capacity and commenting:-

“There may therefore be considerable empty capacity either in the IS Centres or the Acute Trusts or Primary Care Provider provision.”

It suggested that “the Acute Trusts” would lose income but would still have to cover the full costs of services; they would be increasingly left with the high cost, and high complexity of emergency work. It noted that there would also be redundancy costs to manage. The list of key issues also referred to a requirement for formal s.11 consultation and suggested:-

“There are major implications, particularly for the BHSP (the Bristol Health Services Plan)…”

Christina Craig attended a meeting on 1 September 2005 at which the question of consultation was raised and not resolved, but it was recognised that Overview and Scrutiny Committees should be briefed. In October 2005 the Strategic Health Authority’s project manager set up a local independent sector Steering Group consisting of representatives from the Department of Health, the Strategic Health Authority and local Primary Care Trusts and NHS Acute Trusts. At those meetings there were discussions in relation to the case mix to be used in the Invitation to Negotiate. In December 2005 proposals in relation to case mix were discussed, in particular at a meeting with representatives of Primary Care Trusts on 5 December 2005 and then provided, in final form, to the Department by the Strategic Health Authority on 16 December 2005.

It is important to record that two days before, on 14 December 2005, the Strategic Health Authority wrote to Primary Care Trust chief executives within the area providing what were described as:-

“agreed lines to support local information sharing.”

This contained a paper describing the process by which the Department intended to procure Independent Sector Treatment Centres for Avon, Gloucestershire and Wiltshire. For example, the paper said:-

“For AGW (the relevant area), along with London and four other Health Authorities, this will mean working with colleagues in the Department of Health to look at the number and type of procedures which will be suitable for the independent sector to provide. This work is not based on specific sites in AGW but on the range and volume of procedures which the department will procure on behalf of the whole local population. At this stage the Department is some way off from discussions with any providers in looking at how or where they will provide these services.

With clinicians and managers we are putting together information to inform this process, including the description of models of care, developed as part of the Bristol Health Service’s Plan…Once this process is complete the Department will produce the specification and invite responses from accredited health care providers…These services represent the local development of the Government’s policy on choice for patients living in the AGW area – they do not represent a requirement or expectation that all patients will make use of them but that such alternatives will feature as part of information for patients on the local menu of choices.

This work is at an early stage. For further information please contact your local PCT.”

There then followed a series of questions with proposed answers in relation to the development of the procurement project.

We have set out extensive quotations from these papers because they form the foundation of a suggestion on behalf of all the respondents that in fact, even if an obligation under s.11 had arisen, it had been satisfied. We shall turn to that contention later.

The Steering Group, to which we have already referred, discussed appropriate maximum travel times on 5 December 2005. Although the Department eventually decided upon a maximum of one hour, local views favoured, not surprisingly, the shorter time of 45 minutes as being a period which would encourage patients to take up services provided by the independent sector.

Earlier, in October 2005, there had been discussions with the Primary Care Trusts as to preferred location but, as we have already recorded, the decision was taken by the end of November not to suggest particular sites to potential bidders in the Invitation to Negotiate.

The Invitation to Negotiate was issued to prospective bidders on 20 December 2005. The Department did not provide that document to Strategic Health Authorities or to any other NHS bodies in the relevant area. It was the Department which evaluated the bids and UK Specialist Hospitals was selected on 4 August 2006.

The participation of the South Gloucestershire Primary Care Trust in the procurement process is described by Penny Harris, its Chief Executive. Her account mirrors the description of events we have already given in relation to Strategic Health Authorities. But she does note that Overview and Scrutiny Committees were:-

“kept abreast of the progress being made…”

She further records that briefings and information were shared with “interested stakeholders” and refers in particular to the memorandum and questions and answers of 14 December 2005 which she said was information provided to chief executives to share with Overview and Scrutiny Committees and with patient forums (see paragraphs 20 and 21 of her statement dated 28 February 2007).

These accounts of the participation of Strategic Health Authorities and Primary Care Trusts are confirmed by Anita Randon as leader of the scheme for the Department of Health. She describes the limited opportunity for local NHS representatives to participate in the process of selection of the bidder due to the need to establish and enforce a strict protocol to ensure a fair and lawful bidding process. This required controlled meetings with local NHS representatives and with local bidders so as to avoid conflicts of interest and the promotion of vested interests.

After the issue of the Invitation to Negotiate, the membership of the Steering Group was changed to include only certain Primary Care Task representatives so that the Steering Group could serve as a “sounding board process” during the evaluation process. In her summary, Anita Randon describes the participation of the Strategic Health Authority and Primary Care Trusts as affording an opportunity to make their views known but precluding any power to take decisions in relation to the independent sector treatment scheme for the Avon, Gloucestershire and Wiltshire area.

The essential question, accordingly, raised in this case is whether the limited participation of the Strategic Health Authority and Primary Care Trust in the process of preparing the Invitation to Negotiate and selection of the preferred bidder triggered any obligation under s.11.

In that factual context, it is now appropriate to consider whether s.11 imposed any duty, either on the Strategic Health Authority or the Primary Care Trust.

S.11 as amended provides:-

“(1)

It is the duty of every body to which this section applies to make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on –

(a)

the planning of the provision of those services,

(b)

the development and consideration of proposals for changes in the way those services are provided, and

(c)

decisions to be made by that body affecting the operation of those services.

(2)

This section applies to –

(za) Strategic Health Authorities,

(a)

Health Authorities,

(b)

Primary Care Trusts, …

(c) NHS trusts, and

(d)

NHS foundation trusts.

(3)

For the purposes of this section a body is responsible for health services –

(a)

if the body provides or is to provide those services to individuals, or

(b)

if another person provides, or is to provide, those services to individuals –

(i)

at that body’s direction

(ii)

on its behalf, or

(iii)

in accordance with an agreement or arrangements made by that body with that other person;

And references in this section to the provision of services include references to the provision of services jointly with another person.

(4)

Subsection (5) applies to health services for which a Strategic Health Authority is not responsible by virtue of subsection (3), but which are provided or to be provided to individuals in the area and for which –

(a)

a Primary Care Trust any part of whose area falls within the Authority’s area, or

(b)

an NHS trust which provides services at or from a hospital or falls within the Authority’s area,

is responsible by virtue of subsection (3).

(5)

A Strategic Health Authority may give directions to Primary Care Trusts falling within paragraph (a) of subsection (4), and NHS trusts falling within paragraph (b) of that subsection, as to the arrangements which they are to make under subsection (1) in relation to health services to which this subsection applies.

(6)

It is the duty of each Primary Care Trust and each NHS trust to which such directions are given to comply with them.”

A number of features of the statutory scheme may be noted at the outset. Firstly, the obligation contained within s.11(1) is imposed only on those bodies identified in s.11(2). It is not imposed upon the Secretary of State or upon the Department of Health. Secondly, the nature of the obligation is expressed as being to make arrangements with the objective of securing involvement in and consultation on the matters identified within s.11(1)(a)-(c). Thirdly, the obligation on any particular body is limited by reference to those services for which it is responsible. Responsible is a term of art within the statutory scheme, defined by s.11(3). It is not possible to determine whether the obligation under s.11(1) is triggered without identifying those services for which the body in question is responsible within the meaning of s.11(3). The starting point must, accordingly, be to consider whether either the Strategic Health Authority or the Primary Care Trust were responsible for services within the meaning of s.11(3).

The Strategic Health Authority does not providehealth services to individuals (s.11(3)(a)). Nor does it or will it direct any other person to provide such services (s.11(3)(b)(i)). Nor are services provided, nor will they be provided on the Strategic Health Authority’s behalf or in accordance with an agreement or arrangements by the Strategic Health Authority (s.11(3)(b)(2) and (3)). Its functions are limited, as we have already stated, by Regulation 3(2)(b) of the 2002 Regulations, to support management of the performance of Primary Care Trusts.

Accordingly, if the Appellant is to establish any obligation under s.11, it must be an obligation imposed upon the Primary Care Trust.

The Primary Care Trust is, plainly, responsible for health services, within the meaning of s.11(3), in that it currently provides such services to individuals.

The second stage of the statutory quest is to identify those services to which the putative obligation relates. This process of identification is required because of the structure of s.11(1), which imposes the obligation as respects health services…and by virtue of the later references in that sub-section to those services.

There is another reason, exposed by the facts of the instant appeal, why it is important correctly to identify the services in respect of which it is said the obligation is imposed. S.11(3) makes it clear that the services for which a body is responsible may either be services currently provided or to be provided in the future (is to provide). Those services which are to be provided in the future by UK Specialist Hospitals are not to be provided by the Primary Care Trust. Those future services will not, therefore, be services for which the Primary Care Trust is responsible by virtue of s.11(3)(a).

The question then arises whether the services to be provided in the future fall within s.11(3)(b). Such services may be provided at an Independent Sector Treatment Centre by UK Specialist Hospitals on behalf of the South Gloucestershire Primary Care Trust. But it is, as yet, too soon to say that UK Specialist Hospitals are to provide health services on behalf of the South Gloucestershire Primary Care Trust so as to make that Trust responsible within the meaning of s.11(3). The explanation as to why it is premature to say that s.11(3)(b)(ii) is engaged is to be found in the evidence of Sean Kelleher, the head of the Central Clinic Procurement Programme. Health services will be provided under a “choose and book” system. Once a GP has determined that a patient requires an elective procedure (either a diagnostic test or pre-booked surgery) he will inform that patient of at least four providers offering the necessary treatment. From that list a patient, with advice from his GP, will be able to choose when and where to receive the necessary treatment. Primary Care Trusts will be responsible for approving the list of providers listed on a local menu for elective treatments and for ensuring that GPs within their area offer that list of at least four providers to the patient.

It is important to observe that what is described as the “choose and book” service is national, and not confined to the local area of a Primary Care Trust in which a patient finds himself. Although locally commissioned services will be the first selection displayed, a patient will have a wider choice of provider and may wish to exercise an extended choice from a national menu.

But for the purposes of the instant appeal, it is crucial that it will be the responsibility of the Primary Care Trust to decide whether or not to include the Independent Sector Treatment Centre provided by UK Specialist Hospitals on a local menu of choice. As yet the South Gloucestershire Primary Care Trust has made no decision as to whether to include UK Specialist Hospitals’ Independent Sector Treatment Centre on the local menu of choice for patients. Thus, at this time it cannot be said that services are to be provided by UK Specialist Hospitals on behalf of South Gloucestershire Primary Care Trust. It is true, that in the future, if the Primary Care Trust decides to include the Centre on the local menu it will be responsible for such services within the meaning of s.11(3)(b)(ii). But unless and until such a decision is made, the South Gloucestershire Primary Care Trust is not responsible for services to be provided by UK Specialist Hospitals Limited within the meaning of that subsection. The same reasoning occludes the application of s.11(3)(b)(iii).

For that reason, if the Appellant is to succeed in establishing that the duty under s.11(1) was triggered, she must demonstrate that the duty arose in relation to health services currently provided by the Primary Care Trust. Indeed, the argument before us focused on those services currently provided. Mr Wolfe, sensibly, appreciated the significance of the “choose and book” system and the fact that the Primary Care Trust had not yet chosen to include the proposed Independent Sector Treatment Centre on its list in a local menu.

The third stage is to consider whether any of the circumstances to which s.11(1)(a)-(c) refers, occurred in the period between 22 August 2005, when the Department assumed responsibility for procuring an Independent Sector Treatment Centre, and, 4 August 2006, when it selected UK Specialist Hospitals as preferred bidder. Mr Sales QC, on behalf of the respondents, resisted any such conclusion.

This resistance might be thought by the unkind observer to be somewhat surprising. The Secretary of State has published Practice Guidance on s.11, a volume of some 160 pages with the title “Strengthening Accountability” and the sub-heading “Involving Patients and the Public”. This is designed to:-

“help staff address and share the why and the what of patient and public involvement in the context of s.11 of the Health and Social Care Act – why it is important and what it entails.”

The document trumpets the importance of involving and consulting patients not merely as a matter of law but as a reflection of:-

“understanding and valuing the benefits and positive outcomes, both financial and non-financial, of involving patients and the public in the planning and development of health services”.

In Practice Guidance 10, discussing what it describes as “methods and approaches”, the Guidance asks what level of involvement is required and answers:-

“Involvement can be viewed as a continuum ranging from minimum to maximum involvement. The level of involvement should be matched to the circumstances and context in which it is to take place. For example, working at a minimum level by giving information about a health development might be the most appropriate level of involvement at a particular time and in specific circumstances. Certainly, without being well informed, the patients and the public can never be properly involved.”

A diagram demonstrates what is meant by a “continuum”. Minimum involvement might require merely giving information, whereas maximum involvement will engage what the author of the Guidance describes as participation, such as Citizens’ Juries’ Health Panels and “Storytelling” and “Partnership”. The Guidance requires the reader to “take it seriously”.

This clarion call was played “poco piu piano”(a little more softly)by Mr Sales in court. He resisted the conclusion that any of the circumstances referred to in s.11(1)(a)-(c) had arisen, on two essential bases. Firstly, he contended that the obligation under s.11(1) was imposed only on a body responsible for making a decision. The Primary Care Trust had no responsibility for making any decision and thus was not required to inform or consult. The only body which made any decision was the Department itself and the statute was astute to impose no obligation on the Department ( s.11(2)).

He developed that submission by focussing on s.11(1)(c), which imposes the duty on the body responsible for services when that body is responsible for making a decision about those services. The reference to making a decision colours the interpretation to be given to the circumstances described in (a) and (b).

Mr. Sales invoked the Explanatory Notes to s.11, to the extent that they cast light on the objective of the section, to support the Respondent’s contention that the duties were imposed only on those bodies responsible for making decisions. They describe the duty as:-

“A duty to make arrangements with the aim of involving patients and the public in the planning and decision-making processes of that body, in so far as they affect the operation of the health services for which the body is responsible.”

We do not accept that because s.11(1)(c) refers to decisions to be made by a body responsible for health services as defined in s.11(3) it follows that s.11(1) imposes no duty upon such a body unless it is responsible for making a decision. Neither s.11(1)(a) nor (b) make any reference whatever to who is to make a decision following the planning or development and consideration of proposals for change. Indeed, on their face, they refer to processes which may not lead to any decision at all. If it was intended to impose the s.11 obligation only on those responsible for making decisions, there was no reason why the section should not say so. The Explanatory Notes are not inconsistent with our construction .

The second line of Mr. Sales’ resistance was that the content of the obligation, which requires both public involvement and consultation, indicates that there was no obligation imposed on a body with no responsibility for making decisions, in circumstances where the product of such involvement and consultation might well make no difference to that decision. It made no sense, he argued, to impose a fruitless duty.

The fourfold content of the duty of consultation is by now well established. Firstly, consultation must be undertaken at a time when proposals are still at a formative stage; secondly, sufficient reasons must be provided for particular proposals so as to permit those consulted to give intelligent consideration and response; thirdly, adequate time must be given; and fourthly, the product of consultation must be conscientiously taken into account when the ultimate decision is taken (see R v Brent London Borough Council ex pGunning [1985] 84 LGR 168 approved in R v London Borough of Barnet ex pB [1994] ELR 357 and R v North and East Devon Health Authority ex pCoughlan [2001] 1 QB 213). Since the decision in relation to an Independent Sector Treatment Centre was to be taken by the Secretary of State, it made no sense to impose any obligation on those not responsible for the decision.

This submission fails to recognise the nature of the duty imposed by s.11. It is not a duty to involve and consult but rather an obligation:-

“to make arrangements with a view to securing”,

those objectives. The very use of different terms, involvement and consultation, only makes sense if something less than consultation may be appropriate in certain circumstances. The two concepts of involvement and consultation reflect the different stages at which the obligation may be triggered. There is no warrant for construing s.11(1) as imposing an obligation to consult on each and every occasion one of the circumstances identified has occurred. The arrangements which bodies responsible for health services must make must be designed both to secure public involvement and public consultation. Whether mere involvement or something more, namely consultation in the full Gunning sense, is required, will depend upon the circumstances identified in s.11(1)(a)-(c). It is comforting that this construction of the section is consistent with the Department’s own guidance, although the latter has no statutory force.

We turn, then, to the events leading to the selection of the preferred bidder. The Department’s own description of its proposals to would-be tenderers for the Independent Sector Treatment Sector reinforces the conclusion that they were expected to change the way current services are to be provided. The scheme required services to be “fully integrated” with local Health Service bodies and referred to “a locally integrated service that is patient-centred”. Bidders were required to demonstrate how their proposals would support what was described as “the local health economy” (para 2.2(b) of the Independent Sector Procurement Programme Scheme Summary).

Moreover, the Department’s proposals were developed and considered in the period we have described. There were discussions as to what type of diagnostic tests and pre-booked surgery would be appropriate for the independent sector to provide. The paper we have identified, written on 14 December 2005 by the Strategic Health Authority, affords a clear example of such development and consideration. The Steering Group’s discussions as to maximum travel times provides another example.

We conclude that, in the period between August 2005 when the Department took responsibility for procuring the Independent Sector Treatment Centre Scheme and 4 August 2006 when the Secretary of State selected UK Specialist Hospitals as preferred bidder, South Gloucestershire Primary Care Trust was under an obligation to make arrangements to involve patients or their representatives in the development and consideration of proposals for changes in the way existing non-acute services were provided by that Trust. In particular, when the Chief Executive of the Trust received the document dated 14 December 2005 (see para 19), a document which itself referred to “agreed lines to support local information sharing”, the Trust was obliged, under s.11, to involve the patients or their representatives by sharing that information with them. We reject the suggestion that because the Primary Care Trust was not responsible for making any decision it was under no obligation at all. The advice of the Department (which we have in draft dated 2 December 2005) that the Primary Care Trust was not under a duty to “consult on centrally led schemes” was, as a matter of law, erroneous.

Now that we have given our conclusions as to the proper construction and application of s.11, it is necessary to consider their consequences. The claim form identified the decision impugned as a decision not to consult on the Independent Sector Treatment Centre. This decision followed the Department’s view expressed in the document dated 2 December 2005 to which we referred in the paragraph above. Of course, the Claimant was not aware of such advice. But the relief she claimed was to quash the decision of the Secretary of State to select UK Specialist Hospitals as preferred bidder. She persisted in that claim for relief, both before Calvert-Smith J and in pursuing this appeal.

When the judge gave permission to appeal, the final contract prepared between the Department and UK Specialist Hospitals was not signed. The Department decided that it would not be appropriate to enter into such a contract before this court had reached a conclusion on the appeal. The effect of delay in concluding the contract requires no emphasis.

The services which it was intended the Independent Sector Treatment Centre should provide in Avon, Gloucestershire and Wiltshire were planned to start in August 2008. Approximately 33,000 of the procedures and 52,000 of the diagnostic assessments, which it was planned to provide each year, have been delayed. UK Specialist Hospitals has deployed more than 20 people in preparation of the contract. It has also entered into contracts with third parties in relation to acquisition of land and the preparation of detailed architectural engineering drawings, construction and service contracts.

The claimant’s position was itself, to put it kindly, only peripheral to the process of selection of the preferred bidder. The only evidence we have from her is contained in two short statements which reveal that her concerns were triggered because her mother is a health assistant at Frenchay Hospital which was no longer to provide acute treatment. It was through her mother that she had learned of the proposal to provide an Independent Sector Treatment Centre. We have already recorded that there is no connection between the decision to change the function of that hospital and the introduction of an Independent Sector Treatment Centre. We emphasise again that the decisions in relation to Frenchay Hospital are not the subject of these proceedings.

There was considerable controversy between the parties as to the date when the Claimant first learned of the subject matter of these proceedings which, in the light of the events to which we shall turn, does not require resolution. We should only record that there was doubt as to the Claimant’s explanations for the delay in issuing these proceedings.

We need not resolve that doubt because the focus of these proceedings has changed dramatically. After grounds of appeal and skeleton arguments from both sides were prepared, the Claimant wrote in a supplementary skeleton argument dated 12 June 2007, two days before the proceedings started:-

“For the avoidance of doubt, the Appellant confirms that, although she seeks a declaration that the Secretary of State acted unlawfully (and seeks permission to add to her grounds of appeal to do so, as necessary), she does not ask the Court to quash the decision announced on 16 August 2007.”

We pass over the insouciant reference to confirmation since, at least so far as this Court is concerned, there had been no previous indication that the Claimant no longer sought to quash the selection of the preferred bidder.

No doubt that was realistic in the light of the many reasons why this court might well have refused to quash the decision to select the preferred bidder. But the consequence of so late a decision not to pursue the attempt, however hopeless, to quash the selection, is that the completion of the final contract with UK Specialist Hospitals has been unnecessarily delayed.

The decision not to pursue the remedy sought in these proceedings means that, strictly, it is unnecessary for this court to consider whether there ever was a breach of the statutory obligation we have identified and in what circumstances it might have been appropriate to quash the decision in the light of such a breach. But we make these observations. Firstly, we should emphasise the variable content of the obligation we have identified. In the light of our conclusion that the degree of public involvement will depend upon the stage which planning and development of proposals has reached, in some cases the involvement required by s.11 will be limited indeed. It may require no more than giving information, as the Practice Guidance envisages. Secondly, there will be cases, of which the instant appeal affords an example, where the obligation is imposed on a body which has no responsibility for making a decision. Accordingly, the question arises: what sensibly could be achieved by establishing a breach which consists merely of a failure to share information by a body which has no responsibility for making a decision?

Essentially the complaint in this case was not of failure to make arrangements, since there was no question but that an Overview and Scrutiny Committee and a Patients’ Forum would have been available to receive any information shared with them and to discuss such information. Arrangements were in place. The real complaint lay in an alleged breach of an implied obligation to give effect to those arrangements. But, as we have already hinted (e.g., paragraphs 20 and 21), it appears likely that the information provided on 14 December 2005 was passed down the line. Accordingly, whilst we can reach no final view, it appears likely that the limited obligation triggered in this case was fulfilled.

But even if information had not been shared, as s.11 required, the respondents would have wished to contend that any failure could not be said to have been relevant to the decision made to select UK Specialist Hospitals. That decision was made by the Department at a stage when, as we have already concluded, the circumstances did not require consultation in the full legal sense, but merely the dissemination of information on topics such as “case-mix” and travelling time. The failure to pass information to a Patients’ Forum or Overview and Scrutiny Committee could not, so it would have been argued, have been relevant to a decision to select a preferred bidder.

At the stage when written arguments were exchanged it was still thought the Claimant would attempt to quash the decision to select UK Specialist Hospitals as preferred bidder. Reference, accordingly, was made to the question whether, notwithstanding a failure to comply with the obligation, the Court should interfere with the decision as to selection of that preferred bidder. Smith v North East Derbyshire Care Trust and Secretary of State for Health [2006] EWHC 1338 (Admin) (Collins J) and in this court [2006] EWCA Civ 1291, was a case where a Primary Care Trust had appointed a provider of General Practitioner Services but had failed to comply with its obligation to inform the Patients’ Forum before making its decision. Collins J had “very much” doubted whether even if the Primary Care Trust had received and considered the Claimant’s views, it would have reached a different decision (paragraph 27). This Court concluded that he had applied the wrong test. It was not sufficient that the decision would probably have been the same; the Defendants would have to show that the decision would inevitably have been the same (see paragraph 10 in the judgment of May LJ).

In light of the Claimant’s abandonment of the attempt to quash the decision, it is unnecessary for us to consider whether the failure to provide information to the Primary Care Trust in the instant appeal could possibly be said to have had anything to do with the decision of the Secretary of State. But we do believe it important to emphasise that in those cases where the obligation under s.11 may be limited, very little will be achieved by bringing proceedings for Judicial Review. In R v Brent LBC ex pWalters [1998] 30 HLR 328, in the context of disposal of housing by a local authority, this Court rejected the suggestion that a breach of the obligation to consult should inevitably lead to the consequence that the consultation process should be re-started and the scheme of disposal be re-considered.

“…the exercise of the discretion to grant or refuse Judicial Review usually, and in this case certainly does, involve close attention to both the nature of the illegality of the decision and its consequences. In a case where the consultation process is impugned it is not irrelevant for the Court to consider the consultation process required in the particular case and its purpose, what those entitled to be consulted actually understood, and whether compliance with the consultation process would in fact have had any significant impact on them and the decision…where, as here, there is overwhelming evidence that the effect of Judicial Review will not be limited to requiring the authority to repeat the process in the prescribed form, but will certainly damage the interests of a large number of other individuals who have welcomed the proposals, and acted on the basis that they will be implemented, it would be absurd for the Court to ignore what Schiemann LJ rightly described as the relevant ‘disbenefits’. (per Judge LJ at page 381).”

This approach, well-settled in the sphere of public law, is particularly important in this case. We acknowledge that the courts are concerned to ensure that public administration, particularly in a field as important as the National Health Service, should comply with obligations imposed by statute. Since we have had the opportunity to correct the erroneous legal view of the Department, something has been achieved. But we must recognise, also, that that opportunity has arisen in a case where the impact on the claimant and others receiving health services in Avon, Gloucestershire and Wiltshire can only be described, at this stage, as minimal. Indeed, it appears that this issue has only arisen in the wake of the more turbulent controversy as to the closure of Frenchay Hospital which has nothing whatever to do with these proceedings. Our conclusion as to the law has been reached at the cost of a disproportionate amount of time and energy, exacerbated by the burden of files containing at least one thousand documents; the costs might have been better deployed in securing and maintaining health services within the region concerned. Public law falls into disrepute if it causes an unnecessary diversion of work and resources. It is dispiriting that we can discern little if any benefit to those in Avon, Gloucestershire and Wiltshire at having established that the Department erred in law in its views as to s.11. Others may benefit, in the future, from that conclusion, but not the claimant nor, so far as we can see, anyone within Avon, Gloucestershire and Wiltshire.

Accordingly, whilst we conclude that the judge erred in law and that in the period between 22 August 2005 and 4 August 2006, South Gloucestershire Primary Care Trust was under an obligation, by virtue of s.11(1), to share information with patients’ representatives as to those matters upon which it had been consulted by the Department, a declaration to that effect would add nothing and the claimant’s advisers have recognised, albeit belatedly, that there is no question of this court undoing what has been done. We take the view that these proceedings were wholly disproportionate to the limited utility of the result achieved. We conclude that the judge erred in law but we refuse any relief and will dismiss the appeal.