3.13R v North and East Devon Health Authority ex p Coughlan [2001] QB 213, (1999) 2 CCLR 285, CA
A consultation process, undertaken voluntarily, will be unlawful unless it complies with the ‘Gunning criteria’
Facts: Ms Coughlan was rendered very severely disabled by a road traffic accident. After a period of treatment at Newcourt Hospital, which North and East Devon then wished to close, she and seven other patients were moved to Mardon House hospital, with an assurance that it would be their ‘home for life’. However, North and East Devon then resolved to close Mardon House. In addition, it determined that Ms Coughlan no longer met the criteria for NHS continuing healthcare, so that she had to resort to local authority residential accommodation (for which she could be charged). Ms Coughlan submitted that it was beyond the powers of a local authority to provide her with the nursing care she needed, that it was unlawful for North and East Devon to resile from its ‘home for life’ promise, and a breach of Article 8 ECHR, and that there had been inadequate consultation.
Judgment: the Court of Appeal (Lord Woolf MR, Mummery and Sedley LJJ) held that ‘although there are criticisms to be levelled at the consultation process, and although it ran certain risks, it was not flawed by any significant non-compliance with the Gunning criteria’ (paragraph 117). The court also said:
108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent LBC ex p Gunning (1985) 84 LGR 168.
Comment: ‘Significant non-compliance’ may not have been intended as a legal test, but it may be important that it is a lower threshold than that adopted in subsequent cases: see below, R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of PCT [2012] EWCA Civ 472.