Factual and Procedural Background
This appeal concerns a challenge by the Joint Committee of Primary Care Trusts ("JCPCT") against an order quashing a major public consultation conducted in 2011 on the reconfiguration of national paediatric cardiac surgical services in England. The consultation document proposed two designated centres in London: Evelina Children's Hospital and Great Ormond Street Hospital ("GOSH"), excluding the Royal Brompton Hospital ("Royal Brompton"), a leading specialist centre. Royal Brompton, as the applicant for the quashing order, succeeded below on one of five grounds, specifically on a claim of legitimate expectation regarding the use of its research information in the evaluation process. The JCPCT appeals that decision and Royal Brompton seeks to uphold it on additional grounds.
Legal Issues Presented
- Whether the consultation process was unfair or flawed due to the alleged pre-determination of the preferred two-centre option excluding Royal Brompton.
- Whether the rejection of a three-centre option for London was irrational and unjustified.
- Whether inaccuracies in the consultation document misled consultees, rendering the consultation unfair.
- Whether the involvement of senior clinicians from the two preferred centres on the advisory Steering Group constituted apparent bias affecting the consultation.
- Whether there was a legitimate expectation that Royal Brompton's self-assessment research information would not be used in the configuration evaluation, and if this expectation was breached causing unfairness.
- Whether the consultation process and subsequent rescoring of research evidence complied with principles of fairness and public law.
Arguments of the Parties
Appellant's Arguments (JCPCT)
- The self-assessment template did not create a legitimate expectation that the information provided would not be used in the configuration evaluation, as it was clear that the evaluation criteria were not yet established at the time.
- The consultation document did not preclude consultees from supporting alternative options, including three centres in London.
- The Steering Group’s advisory role and the presence of clinicians from Evelina and GOSH did not amount to bias, given the group’s remit and the independent decision-making of the JCPCT.
- Royal Brompton had the opportunity to provide further research information during rescoring, which was duly considered.
- The consultation process was lawful, fair, and consistent with public law principles, and the judge erred in quashing the consultation on the ground of legitimate expectation.
Respondent's Arguments (Royal Brompton)
- The consultation was unfair as the preferred two-centre option excluding Royal Brompton was effectively predetermined.
- The rejection of the three-centre option was irrational and not properly consulted upon.
- The consultation document contained misleading information, including an understatement of projected procedures, which distorted the consultation.
- The involvement of clinicians from the two preferred centres on the Steering Group raised a real possibility of apparent bias affecting the consultation process.
- The self-assessment template created a legitimate expectation that the research information submitted would not be used in the configuration evaluation, and the breach of this expectation distorted the consultation.
- The scoring of Royal Brompton’s research was flawed and unfair, adversely affecting its position.
- Additional grounds include challenges to the scoring on Deliverability and concerns about the closure of Royal Brompton’s paediatric intensive care unit (PICU).
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 |
Standards of fairness in public consultation: consultation must be at a formative stage, provide sufficient reasons, allow adequate time, and take consultation responses into account. |
Applied as the leading authority setting the fairness framework for the consultation process under challenge. |
| R v Brent London BC, ex p Gunning (1985) 84 LGR 168 |
Principles of proper consultation and fairness. |
Referenced within Coughlan as part of the fairness prescription. |
| R (Capenhurst) v Leicester City Council [2004] EWHC 2124 (Admin) |
Consultation documents must facilitate effective and intelligible responses. |
Supported the requirement that consultation documents must clearly present issues. |
| R v Secretary of State for Transport ex parte Richmond upon Thames LBC (No.2) [1995] Env L R 390 |
Consultation documents must be clear to the general public. |
Used to reinforce the clarity requirement for consultation documents. |
| Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435 |
A decision-maker may present preferred options in consultation provided other options are clear. |
Supported the JCPCT’s approach of having a preferred option while allowing consultees to respond on alternatives. |
| R v Secretary of State for Transport ex parte Richmond-upon-Thames LBC (No.3) [1995] Env L R 409 |
Errors in consultation documents may not amount to unfairness if immaterial. |
Applied to assess the materiality of alleged inaccuracies in the consultation document. |
| R(o/a Greenpeace Ltd) v Secretary of State for Industry [2007] EWHC 311 (Admin) |
Clear unfairness is required to quash consultation; something must have gone clearly and radically wrong. |
Used to set the threshold for establishing unfairness in consultation. |
| R(Medway Council and ors) v Secretary of State for the Environment [2002] EWCA 2516 (Admin) |
Unfairness affecting only a group of consultees is sufficient to challenge consultation. |
Supported the proposition that unfairness need not affect all consultees. |
| R (Goldsmith) v Wandsworth LBC [2004] EWCA Civ 1170 |
Considerations on apparent bias and the effect of advisory bodies on decision-making. |
Distinguished by the judge on the basis that the Steering Group’s advice was not legally deficient. |
| In re Medicaments [2001] 1 WLR 700 |
Definition of bias as an attitude preventing objective determination. |
Applied in assessing the potential for bias in advisory and decision-making bodies. |
| Porter v McGill [2001] UKHL 67 |
Test for apparent bias: whether a fair-minded and informed observer would perceive a real possibility of bias. |
Applied in analyzing the appearance of bias in the Steering Group’s composition. |
| Ladd v Marshall [1954] 1 WLR 1489 |
Test for admitting new evidence on appeal. |
Referenced in relation to late evidence concerning a panel member’s partiality. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the consultation process, the statutory and common law framework governing public consultations, and the specific facts of the case. It emphasized that consultation must be fair, conducted at a formative stage, and provide consultees with sufficient information to respond intelligently.
The court found that the consultation document did not preclude consideration of alternative options, including a three-centre option, and that consultees were given opportunities to comment on the number and identity of centres. The presence of a preferred option was lawful provided other options were clear.
Regarding legitimate expectation, the court analyzed the self-assessment template and concluded that it did not make a clear and unequivocal representation that the research information submitted would not be used in the configuration evaluation. The template’s statements were ambiguous and had to be read in context, which indicated that the information would inform the final recommendation. The court held that any breach of legitimate expectation did not result in unfairness, especially since Royal Brompton had opportunities to submit further information and the consultation responses showed support for options including Royal Brompton.
On the issue of apparent bias, the court considered the role and composition of the Steering Group, noting its advisory function and the independent decision-making of the JCPCT. It applied the test of the fair-minded and informed observer and concluded that there was no real possibility that the Steering Group’s advice was biased or that any bias infected the JCPCT’s decision. The presence of senior clinicians from two of the three London centres did not, in context, give rise to a legitimate perception of bias.
The court also addressed the conduct of the Kennedy Panel and the late evidence of a panel member’s partiality, concluding that the subsequent partisan conduct did not taint the earlier evaluation phase.
The court emphasized the importance of allowing the consultation process to be self-correcting and cautioned against premature judicial intervention absent an irretrievable flaw. It recognized the JCPCT’s capacity to respond to concerns through rescoring and further consultation.
Finally, the court rejected the additional grounds raised by Royal Brompton as either premature or matters properly addressed through consultation responses rather than judicial review.
Holding and Implications
The court allowed the appeal and dismissed the respondent's notice, thereby overturning the order quashing the consultation.
The decision restores the validity of the consultation process conducted by the JCPCT regarding the reconfiguration of paediatric cardiac surgical services in London. It confirms that the consultation was lawful, fair, and properly conducted within the statutory and common law framework. The ruling underscores that public consultation exercises may present preferred options without predetermining outcomes, provided consultees are adequately informed and able to respond.
No new precedent was established beyond reaffirming established principles on consultation fairness, legitimate expectation, and apparent bias. The judgment highlights the judiciary’s cautious approach to intervention in ongoing consultation processes, favoring the opportunity for public bodies to address concerns through further consultation and evidence review before final decisions are made.