Introduction

Nettleship, R (On the Application Of) v. NHS South Tyneside Clinical Commissioning Group & Anor ([2020] EWCA Civ 46) is a landmark case heard by the England and Wales Court of Appeal (Civil Division) on January 28, 2020. The appellant, Nettleship, sought a judicial review against the NHS South Tyneside Clinical Commissioning Group (CCG) and NHS Sunderland CCG for their decision to reconfigure hospital services, specifically relocating stroke, obstetrics and gynaecology, and paediatric services exclusively to Sunderland Royal Hospital (SRH), thereby discontinuing these services at South Tyneside District Hospital (STDH).

The core issues revolved around the legality of the CCGs' consultation process, the adherence to statutory duties under the National Health Service Act 2006, and whether the decision-making met the principles of procedural fairness and public involvement.

Summary of the Judgment

The appellant challenged the CCGs' decision, alleging that the consultation process violated section 14Z2(2) of the National Health Service Act 2006 and common law principles of procedural fairness. She argued that the CCGs were obliged to consult on the "retain services" option at STDH before discarding it.

Upon review, Lady Justice Nicola Davies dismissed the appellant's claims, holding that the CCGs complied with their statutory duties by consulting on viable and realistic options for service reconfiguration. The court found that the duty to consult under section 14Z2(2) does not extend to options deemed unviable or unrealistic, such as retaining services at STDH. Furthermore, the judges affirmed that the CCGs provided sufficient information and engaged in genuine public consultation processes as per statutory guidance.

The appellate court upheld the decision of the High Court, rejecting all grounds of appeal and confirming the legality of the service reconfiguration implemented by the CCGs.

Analysis

Precedents Cited

The judgment extensively referenced key legal precedents to underpin its decision:

• R v Brent London Borough Council, Ex parte Gunning (1985): Established four principles for consultation in judicial reviews.
• R (Moseley) v Haringey London Borough Council [2014]: Endorsed the four principles from Gunning and outlined additional purposes of the duty to consult.
• R v North and East Devon Health Authority, ex parte Coughlan [2001]: Emphasized the need for clear communication of proposals and reasons during consultations.
• R (Kidderminster and District Community Health Council) v Worcester Health Authority [1999]: Affirmed that authorities could consult on preferred options without needing to include all possible alternatives.

These precedents collectively reinforced the notion that consultation duties are confined to realistic and viable options, not extending to the status quo or options deemed unfeasible.

Legal Reasoning

The court's legal reasoning centered on interpreting section 14Z2(2) of the National Health Service Act 2006 in conjunction with statutory guidance. It concluded that:

• The duty to consult is limited to options that represent genuine proposals for change.
• Authorities are not obligated to include unviable or unrealistic options, such as retaining services that are financially unsustainable or face critical staffing shortages.
• Statutory guidance from NHS England supports this interpretation by advising that consulting on non-viable options would be misleading.
• The CCGs provided sufficient information and engaged in meaningful consultation on the viable options, meeting the standards of procedural fairness.

Additionally, the court addressed concerns about the delayed written judgment but concluded that the substance of the decision was not affected by procedural delays in documenting the judgment.

Impact

This judgment has significant implications for future NHS service reconfigurations:

• Clarification of Consultation Scope: Reinforces that NHS bodies are not required to consult on options they deem unfeasible, focusing public consultation on viable and realistic proposals.
• Guidance for Future Reconfigurations: Provides clear legal guidance for CCGs and other health authorities on complying with consultation duties, potentially streamlining decision-making processes.
• Strengthening Procedural Fairness Standards: Emphasizes the importance of providing sufficient information and genuine engagement during consultations, ensuring that public input is informed and meaningful.
• Judicial Precedence: Serves as a precedent for similar cases, offering a judicial framework for assessing the legality of NHS service changes and the adequacy of consultation processes.

Overall, the judgment balances the need for efficient healthcare service management with the principles of public involvement and transparency.

Complex Concepts Simplified

Section 14Z2(2) of the National Health Service Act 2006

This section mandates that Clinical Commissioning Groups (CCGs) must involve individuals in the planning and decision-making processes related to commissioning healthcare services. The involvement can take various forms, including consultations and providing information.

Judicial Review

A legal process where courts examine the decisions and actions of public bodies to ensure they comply with the law, are fair, and follow proper procedures.

Wednesbury Irrationality

A legal standard used to assess whether a decision made by a public body is so unreasonable that no reasonable authority would ever consider imposing it.

Service Reconfiguration

The process of reorganizing healthcare services, which may involve consolidating services in different locations to improve efficiency, quality of care, and resource allocation.

Conclusion

The Nettleship v. NHS South Tyneside CCG case serves as a pivotal reference in understanding the boundaries of public consultation within NHS service reconfigurations. By affirming that CCGs are not obliged to consult on unfeasible or unrealistic options, the judgment delineates the practical limits of procedural duties, thereby facilitating more efficient decision-making processes in the healthcare sector.

Moreover, the case underscores the necessity for public bodies to engage transparently and provide adequate information regarding viable options, ensuring that public input is both informed and constructive. This balance between administrative efficiency and public involvement is crucial in maintaining trust and efficacy in public healthcare administration.

Ultimately, this judgment reinforces the importance of adhering to statutory duties and legal precedents in public service decisions, while also providing clarity on the extent and limitations of public consultation requirements.