3.12R v North and East Devon Health Authority ex p Pow [1997] EWHC 765 (Admin), (1997–98) 1 CCLR 280
The health authority had remained under a duty to consult despite a need for urgent action arising as a result of its own failures and its hospital closure decision would be quashed notwithstanding the practical difficulties that might ensueTimes 21 May, QBD
Facts: North and East Devon needed to reduce its expenditure in the coming financial year. It first decided in February that it might be necessary to close two hospitals temporarily. In April, that was identified as the best option. In June, it determined on those closures, without prior consultation, on the ground of urgency. North and East Devon had been under a statutory duty to consult except where it was satisfied that ‘a decision has to be taken without allowing time for consultation’ (regulation 18 of the Community Health Councils Regulations 1996).
1SI No 640. Judgment: Moses J held that the respondent was in breach of the duty to consult because, in April, when the closure option had been identified as the optimal course, the need for closure had not been imminent and that, although quashing the closure decision would make it harder to find the necessary savings, that would not be impossible and relief should not be refused. Indeed, consultation might result in alternative strategies in that, although objectors had made their views known, they had not been included in a formal process of consultation:
64. There can be little doubt that by June 1997 the need to make savings required to attempt to comply with the obligations to balance the books, under section 97A of the 1977 Act, was urgent. Earlier estimates of deficit had been too optimistic. By 7th May the deficit was expected to be £2.2 million. Whatever the reason for the passage of time between February and June, the respondent says matters had become so urgent by June that it cannot be said that the decision to dispense with consultation under regulation 18(3) was irrational. For it is that ground alone, which, it is said, could justify a review of a decision under regulation 18(3), absent any suggestion of bad faith. The respondent relies upon R v Tunbridge Wells Health Authority ex p Goodridge, Times, 21 May 1988. In that case there was no evidence to suggest that there had been a decision to close without consultation or that the closure was urgent.
65. Mr Engelman, on behalf of the respondent, suggests that once it is clear that the need to make savings by temporary closure was urgent, it follows that the decision to dispense with consultation cannot be impugned as irrational and cannot, therefore, be reviewed. He relied upon R v Richmond, Twickenham and Roehampton Health Authority ex p London Borough of Richmond, unreported, 20 February 1994, a decision by Mann J. In that case no formal decision had been made under regulation 18(3), but the need for closure was described as urgent. No argument appears to have been advanced suggesting that it was the Health Authority’s own fault for allowing matters to become urgent. Nevertheless, Mr Engelman suggests that it could have been advanced, and contends that absent bad faith, if the need is urgent, the decision cannot be challenged even if the Health Authority might have acted earlier at a time when consultation would have been possible.
66. Mr Richard Gordon QC, on the other hand, relies on R v North West Regional Health Authority ex p Daniels [1994] COD 44, of which I also have an unreported transcript. In that case, Kennedy LJ said of the failure to consult:
‘The District Health Authority cannot be in a better position because instead of making a proposal they allowed the situation to drift in the way I have described. In my judgment that submission is unanswerable, and neither Miss Davies nor Mr Shaw really sought to answer it.’
67. In that case, however, no relief was given because the hospital had already closed. In this case, the Respondent did not merely allow the matter to drift in the sense of doing nothing. The negotiations, in order to reach a final solution, as I have found, continued.
68. I do not think that the authorities assist. Greater help is to be found in the scheme of the regulation. Regulation 18, read as a whole, is designed to ensure that consultation does take place with a Community Health Council once a proposal of the nature it describes is under consideration. It then derogates from that provision, where a decision has to be taken without allowing time for consultation. Regulation 18, in certain cases, permits the Secretary of State to require further time for consultation; it is clearly aimed at achieving sufficient time for proper consultation. It would seriously undermine the purpose of the regulation if a Health Authority could allow time to pass to the point where matters were so urgent that there was no time left for consultation. It would permit a Health Authority, taking the view that there was only one practicable solution, to pre-empt the result of proper consultation.
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72. In my judgment, the Health Authority erred in law in failing to appreciate the proposal temporarily to close Lynton and Winsford Hospitals was a proposal within the meaning of regulation 18(1) such as to trigger the duty to consult in April 1997. That error taints its decision of 4 June 1997 to dispense with consultation and, subject to the issue of discretion, cannot stand.
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74. It is clear that the earlier the savings can be made the greater those savings. Nearly half the financial year has passed. Unless the hospitals are closed, it was said, the necessary savings cannot be achieved. I was told, although I could find no evidence of this, that if I grant relief it will not be possible to use the temporary closure of the hospitals as a means of making savings at all. I accept that to grant relief now will make the task of the finding the necessary savings far more difficult. But I do not accept that the evidence shows that it would be impossible. I appreciate that such savings may have to be made out of other valuable services. It has been suggested that waiting lists will be increased. Even though the task is harder, in my view the importance of the duty to consult is such that I do not think the greater burden of the task facing the Health Authority, caused by its own error in law, justifies the refusal of relief. After all, a conscientious process of consultation with an informed Community Health Council, and, not with the public at large, and which should not be confined to mere protestations of opposition, may produce alternative means of saving the £215,000 which it was hoped to achieve by the end of the financial year.
Comment: this case is not often cited, but its continued relevance probably lies in the example afforded by Moses J’s strict approach to the question of relief: his approach seems to have been that where the public authority is the author of its own misfortune, only very clear evidence of insuperable difficulties would have persuaded him to decline to grant relief, notwithstanding that third parties not before the court might be adversely affected.