3.16R (Smith) v East Kent NHS Hospital Trust and Medway Health Authority [2002] EWHC 2640 (Admin), (2003) 6 CCLR 251
A duty to re-consult only arises where there is a fundamental difference between the consultation proposals and the final decision
Facts: the Trust consulted on four options for re-organising health care provision. The response to the consultation was poor and there was little support for any of the proposals. The Trust then took a decision that incorporated some elements of those four options but was not identical to any of them. The claimant, a local campaigner, sought to quash this decision, on the ground that it had been reached in breach of a statutory duty to consult on ‘significant changes’ to health organisation.
Judgment: Silber J held that a duty to re-consult only arises when there is a fundamental difference between the proposals on which consultation has taken place and the proposed decision:
45. So I approach the issue of whether there should have been re-consultation by the defendants in this case, on the proposals now under challenge on the basis that the defendants had a strong obligation to consult with all parts of the local community. The concept of fairness should determine whether there is a need to re-consult if the decision-maker wishes to accept a fresh proposal but the courts should not be too liberal in the use of its power of judicial review to compel further consultation on any change. In determining whether there should be further re-consultation, a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the Health Service. This means that there should only be re-consultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt.