When Do Public Bodies Have To Consult The Public Before Taking Action?It has recently held in judicial review proceedings in R (Morris) v Trafford Healthcare NHS Trust [2006] EWHC 2334 (Admin) 22/09/2006 that the Trafford Healthcare NHS Trust had breached its statutory duty to consult members of the public before closing the Altrincham General Hospital. The case raises exciting new issues in relation to when (1) specific statutory duties; and (2) a rapidly developing public law duties; will require public law bodies to consult members of the public before taking decisions. The Health and Social Care Act 2001 (the Act') governs NHS Trust's: (1) planning and provision of health services; (2) ability to change the way health services are provided; and (3) decisions which affect the operation of health services. Crucially, section 11(1) of the Act provides that it is the duty of every NHS Trust to make arrangements so that persons to whom health services are provided are either directly (or through representatives) involved in, and consulted upon, the three areas above. In R (Morris) v Trafford Healthcare NHS Trust (above) the decision to close two inpatient wards at the hospital involved no public consultation. Instead the Trust justified the closure on the basis that it was urgently necessary on the grounds of "clinical safety". This may seem like a remarkable stance to take in light of the fact that the Act does not provide for any safety exception to the need for consultation. However, Mr. Justice Hodge accepted that the clinical safety exception could in theory sensibly override the need for consultation. This is in accordance with the Department of Health's July 2003 guidance entitled: "Overview and Scrutiny of Health Guidance" and which takes the view that consultation will not be necessary where a Trust believes that "a decision has to be taken on an issue immediately because of a risk to the safety or welfare of patients of staff." It goes on to say that: "These circumstances should be exceptional." The problem for the defendant Trust in this case was that Mr. Justice Hodge did not accept that there was a risk to safety and held that the expert who recommended closure: "was misinformed as to the function of the wards. His recommendation that the wards should be closed was based on a misunderstanding that they were being used for acute cases. That was never what they were intended for." Interestingly, the difficulties in judicial review of only being able to challenge a public body's decision on limited Wednesbury grounds did not arise because the decision in this case was so plainly flawed. In short, as Lord Hutton said in Alconbury Ltd v. Secretary of State for Transport and the Regions [2001] 2 All ER 929 HL the limits of judicial review are that: " |
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