Nettleship, R (On the Application Of) v NHS South Tyneside Clinical Commissioning Group & Anor

In proceedings for judicial review the appellant seeks a declaration that the decision of 21 February 2018 (“the Decision”) taken by NHS South Tyneside Clinical

The appellant is a resident of South Tyneside and daughter of the unofficial chair of the Save South Tyneside Hospital campaign group, Roger Nettleship. The appellant, her father, together with other members of the local community, have provided witness statements setting out the opposition to the reconfiguration. The population encompassed within South Tyneside Clinical Commissioning Group is 152,000. Life expectancy in the South Tyneside area is considerably beneath the national average, with levels of health and underlining risk factors being some of the worst in the country. Levels of smoking, consumption of alcohol and obesity leading to cancer and heart disease are among the highest causes of death. The appellant contends that local hospital services are particularly important to such a population. The campaign group’s petition to retain consultant-led services at STDH received between 30,000 and 40,000 signatures.

The respondents are CCGs who are the relevant commissioners of a range of acute and community NHS healthcare services. Their core statutory duties are set out in section 3(1) of the National Health Service Act 2006 (“the 2006 Act”). Pursuant to those provisions the legal duty of the CCGs is to arrange for the provision of such services “to the extent it considers necessary to meet the reasonable requirements of the persons for whom they have responsibility”.

Pursuant to section 14Z2(2) of the 2006 Act the respondents are obliged to involve persons who are or might be provided with the services, it states:

“(2)

The clinical commissioning group must make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways)—

(a)

in the planning of the commissioning arrangements by the group,

(b)

in the development and consideration of proposals by the group for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and

(c)

in decisions of the group affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact.”

Pursuant to section 14Z2(5) of the 2006 Act, all CCGs must have regard to the guidance published by NHS England in respect of the process of reconfiguration of health services. This is set out in “Planning, assuring and delivering a service change for patients: A good practice guide for commissioners on the NHS England assurance process for major service changes and reconfigurations” (“the Service Change Guidance”). Further, relevant guidance is available from NHS England in “Patient and public participation in commissioning health and care: Statutory guidance for clinical commissioning groups in NHS England (2017)” (“the Participation Guidance”).

The Service Change Guidance prescribes a six-stage process commencing with the identification of the need for service reconfiguration through to implementation. The stages are:

In 2016 the respondents established the Path to Excellence Programme in order to review and plan the future of hospital services at STDH and SRH. It aimed to address three care gaps outlined in the NHS Five-Year Forward View: health and wellbeing; care and quality; finance and efficiency. The aim of the programme was to undertake a full review of hospital services at both hospitals. However, due to the substantial pressures facing stroke, obstetrics and gynaecology and paediatric emergency services it was decided that phase one of the programme would deal with those areas as a priority. It is the respondents’ case that the programme had been clear from the outset: services could not be retained in their current form. This was consistent with national strategies for change taking place across the NHS and was in response to particular issues faced by the two hospitals.

The first step in the process leading towards the consultation was a pre-engagement listening phase. The respondents published an Issues Paper which identified the challenge facing local health services and the proposals for change. It provided information as to the steps being taken at that stage. The document was published on websites and was available to the public. A series of engagement events were held relating to the content of the paper.

The identified purpose of the programme was to secure safe and sustainable NHS services in the future. Identified problems included the recruitment of staff in key clinical specialities, the impact of a failure to recruit on patient clinical care, recognition of the financial challenges which the NHS faced and the fact that the best use of staff expertise and other resources was not being made. In the first section of the Paper entitled “Why things cannot stay as they are” it was stated that the quality of care received by people in the area could vary. It identified growing demands upon the NHS which resulted in financial pressure on local organisations at a level never before seen. It acknowledged that the needs and expectations of the public were changing, that different and more complex care was required and that local health services needed to change in order to produce a more effective and efficient local health service. Duplication of services and system pressures were identified as particular problems. The gaps in the provision of care as highlighted in the National Five-Year Forward View Plans which include ensuring quality of care, seven day working, access targets, local sustainability, artificial mass concerns, workforce issues and the “financial picture” were identified.

The pressures facing each of the identified three services were set out in the Issues Paper as follows:

“A Stroke services: there had been a serious inability to recruit sufficient consultant numbers. In October 2016 this led to the temporary relocation of patient stroke services from STDH to SRH. The specific reason being the inability to recruit sufficient consultant numbers and the ability to recruit a fulltime stroke consultant for more than two years, leaving a single part-time consultant covering the service and little prospect of recruitment.

B

Obstetrics and gynaecology: staffing issues led to the closure of the special baby care unit at STDH and maternity services in December 2017 and January 2018.

C

Emergency paediatric care: difficulties in recruiting and maintaining a sufficiency of senior doctors to provide the emergency care services at South Tyneside 24/7.”

This was published by the respondents and was available online. This represented phase 1(a) of the Path to Excellence Programme. It describes the potential options for future services reconfiguration. The aims sought were to improve stroke clinical outcomes, to strengthen the safety and quality of maternity care, to ensure the right balance of locally accessible and specialist paediatric care and to produce more sustainable workforce models to retain the services as locally as possible for the longer term.

The document stated that clinically-led design teams had developed potential options for change as part of the service review programme overseen by both CCGs and hospital clinical and non-clinical leaders. A minimum of two potential options for each of the three services had been developed and agreed to be subject to a formal consultation. Each set included one option to develop single-site services at SRH and each included one option to retain appropriate safe service delivery at STDH in order to maximise patient choices.

The options contained within the PCBC were taken from a longer list of options which had been reviewed by design groups in the clinical service reviews. The clinical design process was described at Appendix 5.1 of the document, hurdle criteria were used in order to reduce the list of options. The hurdle criteria were set out as:

As a result of the application of the hurdle criteria the options were reduced and the retention of the option of consultant-led services at STDH was discarded. Not included within the PCBC was the table setting out the original list of options, the CCGs’ evaluation of how each option was to be evaluated against the hurdle criteria and the evidence relied upon in concluding which of the options was to go forward. Prior to these proceedings neither the appellant nor members of the campaign group requested the further information as to the evaluation process which was not included in the PCBC.

The Service Change Guidance mandates that the consultation process could not proceed until the CCGs receive an Assurance from the NHS that the process thus far was in accordance with the Service Change Guidance. NHS England seek compliance with the tests for service change (set out in the guidance), which are:

NHS England declared itself satisfied that the process thus far had complied with the Service Change Guidance and could proceed to the next stage. Criticism was made of the process, directed at the linguistic incomprehensiveness of the PCBC and the failure of the respondents to make public the list of options prior to the establishment of the shortlist. However, NHS England were assured that the process had complied with the guidance and the four identified tests and could proceed to the consultation.

A Public Consultation document was published by the CCGs, distributed to the public and was available online. Within the document links were provided to the Issues Paper and the PCBC together with supporting documents. The document stated that it would provide details of current services, the challenges faced and potential ways that services could be rearranged in the future. The specific challenges identified included the shortage of consultants to provide out of hours cover, the need to improve quality and performance nationally, modernising and reforming services in line with local and national strategies, the needs of individuals and the communities. The particular challenges relating to stroke, obstetrics and gynaecology, and urgent and emergency paediatric hospital services were identified as including recruitment challenges due to current service arrangements, often unattractive to potential new staff, an inability to improve long-term clinical quality and hit key clinical standards due to smaller patient numbers, insufficient medical staff at the correct level resulting in reliance on expensive locum doctors, difficulties in implementing improvements set out in the relevant national strategies.

Identified was the need to adapt and change the way things were done in order to create a better future for the NHS. The aim was to work together to develop plans for better quality care and meet key quality standards while at the same time recognising the need to be as efficient as possible. In a user-friendly document statistics were set out in an accessible manner, accompanied by diagrams, drawings and photographs.

One section was headed “Why doing nothing is not an option”. It stated:

“The ‘do nothing’ option was discounted as this would not lead to improvements in the service, particularly in relation to staffing shortages and the limited number of specialist medical trainees as this problem exists on a national level. Nor did we consider discontinuing these valuable services as the team are focused on finding a local sustainable solution that would best serve the population of South Tyneside and Sunderland.”

The proposed options were set out, as were the impacts of the same:

Not strictly required by the Service Change Guidance, the respondents took the further step of commissioning and publishing a Feedback Analysis Report which was conducted by an independent review body. The report expressed concerns that all the shortlisted options resulted in a downgrading of services and facilities at STDH, serious concerns as to the issues of travel time between South Tyneside and Sunderland for both those with cars and using public transport, equality concerns as to people living in deprived circumstances being disadvantaged in terms of access, and the ability of ambulance services to provide a safe and timely transfer of South Tyneside residents to Sunderland.

This document reported on the public consultation process. Feedback had been received from many sources including clinical service review groups and the public. Insofar as the public were consulted there had been 805 interviews on a street survey, 409 responses online, 324 responses by direct email and 19 public meetings which had received 443 participants when taken together with telephone submissions.

The feedback received was considered and the conclusion reached was that the evidence indicated that the need for change of the current services was unavoidable and compelling.

The Decision proposed the following reconfiguration of local health services:

“A Stroke services: relocate all acute stroke services from STDH to SRH and to deliver all inpatient stroke care at the latter hospital. Discharge to local community stroke teams who would provide any further rehabilitation and support locally.

B

Obstetrics and gynaecology: to close the medically led obstetric unit at STDH and to develop a midwifery-led unit; SRH would be the location for the medically-led obstetric unit.

C

Emergency paediatric services: option 1 (a 12-hour daytime paediatric emergency department at STDH with a 24-hour paediatric emergency department at SRH) to be implemented in the short-term as a transitional step to option 2. Option 2 was a nurse-led paediatric minor injury and illness facility open from 8am to 10pm at STDH and a 24/7 emergency paediatric service at SRH. The implementation of option 2 was to include an independent external review group to review the transition and to proceed at an appropriate pace over the medium-term with likely completion by 2021.”

The CCGs have commenced the proposed reconfiguration.

There is no authority on the duty identified in section 14Z2(2) of the 2006 Act. It is accepted by the appellant and respondents that the common law applies and requires application of the principles set out in R v Brent London Borough Council, Ex parte Gunning (1985) 84 LGR 168 which are that:

In R (Moseley) v Haringey London Borough Council [2014] 1 WLR 3947 Lord

At [25] the judgment of Lord Woolf MR in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at [112] was cited which states:

“It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.”

At [26] two further general points were identified from the authorities, namely the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting and secondly that:

“…the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.” At [27] Lord Wilson stated:

“Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options. …”

At [28] Lord Wilson stated that:

“…even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options. …”

In referencing earlier authorities, Lord Wilson identified the proposition that “a decision-maker may properly decide to present his preferred options in the consultation document, provided it is clear what the other options are”.

In dismissing the appellant’s challenge the judge considered the various steps in the consultation. He begins with the Issues Paper:

“The NHS Sunderland and South Tyneside Clinical Commissioning Groups undertook a listening process. This was entirely transparent and any objective reader of the Issues Paper which at the relevant time included members of the public and patients could not have thought other than this was a genuine wish to hear what they had to say but on the understanding that doing nothing was not an option. Precisely what was to be done was entirely open and without any premeditated decision or limitation on the options available.”

The judge “could see no case whatsoever of a lack of involvement provided to the public at a formative stage or any insufficiency of information to the public”: [101]. He found that the Issues Paper was deemed to provide sufficient information to enable members of the public generally to give intelligent consideration and response: [101].

The judge was satisfied that the PCBC fully appreciated the need for public involvement and sufficiently provided the public with what was of necessity an overview of the clinical design process which had been adopted. As to the use of the hurdle criteria the judge was satisfied that the public was still fully involved, no final view had been formed, but options were starting to crystallise. The judge accepted at [103] that “it may have been better to include that table (citing the long list of options) or similar evidence of the time so the public could appreciate that the do nothing option has in fact been considered and rejected for perfectly cogent reasons from the perspective of the clinical teams”. However, he was not satisfied that there was any lack of transparency nor that it would have made any difference at all: [103].

As to the final Decision the judge was satisfied that it properly, fully and fairly set out the entire background of the public consultation process which he found both transparent and carried out with integrity: [107]. He found that throughout the

had responsibility for the process which led to the Decision. In his witness statements he sets out the background, the thinking behind and the detail of the process.

I agree with both judgments.

I am in full agreement with the judgment of Lady Justice Nicola Davies and only wish to add the following observations concerning the process adopted by the judge in giving judgment so that the unfortunate procedural consequences that flowed from that process may be avoided in future cases.

The oral hearing of the application concluded on 20 December 2018 and on 21 December the judge gave a full extempore judgment. The judgment concluded that the judicial review application was dismissed, however no final order was made at that time. The final order was not issued until 23 July 2019 and it was only after that date that the judge was prepared to consider the appellant’s application for permission to appeal. Once the order had been made the appellant was only then able to approach this court for permission to appeal. The respondent CCGs had, however, taken the decision announced by the judge in December 2018 at the conclusion of the judicial review process and, thereafter, it proceeded to implement the disputed changes by closing down provision of services at STDH.

This unsatisfactory situation apparently arose from the position taken by the judge which was to hold that, although he had given a full oral judgment in December 2018 and announced his final decision at that time, the case was not concluded until a written version of his judgment had been handed down in the form of an approved

On 7 February 2019, the appellant wrote to the respondents requesting details of its plans for implementing the service changes. The respondents replied on 14 February 2019 stating that changes would take place in or around June 2019. On 11 April and then again on 23 April, the appellant wrote to the respondents requesting their agreement to postpone implementation pending receipt of the final written judgment and order, and the appellant’s application for permission to appeal; on both occasions the respondents refused to postpone implementation.

On 30 May 2019 a partial draft judgment was circulated to the parties. On 5 July 2019 the appellant made an application for an interim injunction, seeking to prohibit the respondents and the Sunderland and South Tyneside NHS Foundation Trust from implementing the service changes, pending receipt of the final written judgment and Order.

The full draft judgment was circulated to the parties on 11 July 2019, at which time the appellant withdrew her application for interim relief. On 23 July 2019, the final approved judgment was handed down and the Order made. At the start of the written judgment, HHJ Raeside QC apologised for the delay in handing down. He stated that he had belatedly received a transcript, which was of poor quality, and that he therefore had to make several corrections. We are sure that, had he known that providing a written version of his oral judgment would take seven months, the judge would have taken a different course.

Whatever the reason for the delay may have been, the situation created by this process was plainly most unsatisfactory with the result that the respondents were able to continue to implement the service changes which were the subject of the appellant’s claim, however the appellant was not able to appeal the judge’s decision, as she was not in receipt of the final approved judgment and no court order had been issued.

The process adopted by the judge, and not effectively challenged by the appellant at the time, did not comply with the Civil Procedure Rules (“CPR”). By CPR, r 40.7(1),

“a judgment or order takes effect from the day when it is given or made, or such later date as the court may specify”.

In Civil Procedure: Principles of Practice 3^rd Edition (2013) Zuckerman sets out that “while a judgment is valid from the time that it is pronounced by the judge, it still needs to be entered and perfected into a formal document. This is done by drawing

Thus, in Robinson v Fernsby [2003] EWCA Civ 1820, Lord Justice May said:

“[91] If a judgment has not been handed down or delivered, it has not been given. Until it is given, it is of no effect. Granted that there are obvious reasons why it would be unfortunate … for a judge to alter a draft judgment which has been handed to the parties, it remains a draft judgment which, in my view, the judge is at liberty to alter. The jurisdiction to do so is not in doubt.”

In MRH Solicitors Ltd v The County Court Sitting at Manchester & Ors [2015] EWHC 1795 (Admin), Mr Justice Nicol, sitting with Lord Justice Burnett, found that the Recorder in the case under appeal was wrong to think that he had no power to alter a transcript which recorded what he had said in his ex tempore judgment:

“[26] … it is common practice for a Judge who gives an oral ex tempore judgment to refine it when asked to approve a transcript. Ordinarily, this is limited to tidying up the language, but in principle we see no reason why it may not include more significant changes. In Day v Harris [2014] Ch 211 CA, for instance a judge added a passage to the transcript which had not been included in his oral judgment. The Court of Appeal described this as ‘unfortunate’ because the addition was made long after the trial and it added a finding of fact on a controversial issue. The Court did not suggest that the Judge was disempowered from changing his oral judgment and there would have been no comparable objection to an alteration in the present case. If, as in this case, the order of the Court consequent on the judgment has been sealed, the changes cannot usually alter that order. Otherwise, though, it is a matter for the Judge's discretion as to what changes are appropriate.”

In Bath v Escott [2017] EWHC 1101 (Ch), the applicant claimed that the transcript of the judgment did not accurately set out the oral judgment which the judge had delivered in court. HHJ Matthews found:

“[6] … the mere fact that the transcript of the judgment, as approved by the judge, and sent to the parties, is in any way different from the reasons actually pronounced by the judge at the time of giving judgment, is not wrong in law. Nor does it in itself even give rise to concern. It is an entirely lawful and proper practice for a judge, on receiving a transcript of what was said at the time in giving judgment, to alter that transcript, not only to correct garbled or incorrect transcriptions, spelling and grammatical mistakes, and even matters of style, but also so that the reasons recorded accurately reflect why the judge made the decision that he or she made, even if they were not then properly or fully articulated …

[8] It is clear that a judge who gives reasons for a decision may alter those reasons, indeed sometimes even the decision itself, after having made them known to the parties. So, it has long been the practice for judges to revise transcripts taken of their judgments given in court for the purpose of publication …

[13] What all this means is that, if a judge on later reading the transcript of an oral judgment already delivered considers that what is written there does not accurately represent his or her reasons for the decision, the judge may and indeed should alter it so that it does accurately record the reasons that the judge had for that decision … it does not matter if the approved transcript adds to or differs from the actual words used by the judge at the time of giving judgment. What matters is only that it has been considered, revised if necessary, and then approved by the judge …”

In Re L and B (Children) [2013] UKSC 8, the Supreme Court found that a judge has the power to alter and reverse a decision at any time before the order is drawn up and sealed, and this power is not limited to cases where there are exceptional circumstances.

In Space Airconditioning plc v Guy and another [2012] EWCA Civ 1664 at [53]:

Most recently, in Mazhar v The Lord Chancellor [2019] EWCA Civ 1558, this court [Master of the Rolls, Singh and Baker LJJ] held that it is the substance that determines the issue of whether a judge has or has not made an order:

“57.

Mr Tomlinson also submitted before us that a restrictive interpretation of section 9(1)(c) [of the Human Rights Act 1998] would lead to an undesirable gap emerging where some judicial acts could not be challenged under the HRA at all, because no appeal or application for judicial review is available and there would be no right to bring a claim by way of originating process.

58.

We do not accept that submission. In our view, any exercise of judicial powers is an order that is in principle appealable or (where judicial review is available, as in the case of inferior courts) may be a decision which can be the subject of judicial review. The question is one of substance, not form. Even judicial acts done in excess of jurisdiction are orders. This is the rationale for section 9(2), which preserves the rule that courts of unlimited jurisdiction are not amenable to judicial review, because it is assumed that an appeal is available. Mr Tomlinson was unable to give us any realistic examples of a judicial act that would not be amenable either to appeal or judicial review.

59.

Mr Tomlinson did suggest during the hearing before us that an example can be found on the facts of Sirros v Moore [1975] QB 118, in which a judge asked security staff to stop a person who was in court and who was subsequently detained by them. Mr Tomlinson submitted that there was no formal order in that case, none presumably having been drawn up by the court, and so there would have been nothing which could have been appealed. We do not accept that submission. In our view, an instruction by a judge which leads to a person being detained would be an order which could be appealed. It would not matter if no formal order was ever drawn up. What matters is the substance of the matter, not the form.”

Drawing matters together, and looking at the substance of what occurred in the present case, the judge gave his full judgment in December 2018. Whether or not a formal order was drawn up on that day, as it should have been, that was the ‘day’ on which the decision took effect under CPR, r 40.7(1) and the time for appealing ran from that date. The judge was at liberty to alter the words of his judgment when correcting or perfecting the transcript; indeed, if the transcript was defective, he was obliged to do so. The later release of the corrected transcript was not, however, the ‘day’ on which the decision was made. The court’s final order dismissing the application for judicial review should have been issued to reflect the decision taken in December 2018 and not July 2019. To hold otherwise, would be to contemplate the wholly unsatisfactory situation that occurred here to be replicated in other cases on a regular basis.

I have dealt with this issue in order to provide guidance for the future. For the reasons given by My Lady, even if the appellant had brought her appeal at an earlier stage it would not have succeeded in this case.