A key part of the NHS Long Term Plan involves the reorganisation of stroke services to create centralised and specialist Hyper Acute Stroke Units (HASUs), which involves reducing the overall number of stroke-receiving hospitals in favour of fewer but more specialist, well-equipped units providing a 24/7 service.
Unsurprisingly, plans to stop providing stroke services at certain hospitals are often controversial with the local population, particularly since it is well known that the speed at which stroke patients are treated is critical to survival rates and recovery.
As a consequence, there have been two recent judicial review challenges on this topic; whilst a number of issues were raised, the focus of this article is on the duty to involve patients in service reconfiguration and the robustness of the court in rejecting challenges where extensive engagement and consultation has taken place.
Nettleship v South Tyneside CCG and Sunderland CCG
This Court of Appeal case involved the CCGs’ decision to reconfigure stroke and other services (namely maternity, gynaecology, and emergency paediatrics) across two hospitals, the Sunderland Royal Hospital (SRH) and South Tyneside District Hospital (STDH).
The CCG embarked upon a pre-engagement ‘listening phase’ prior to taking a decision, pursuant to which an Issues Paper was published identifying the need for change, particularly given the difficulty specific to stroke services in recruiting and retaining sufficient consultants. The CCGs held a series of public engagement events, before publishing a Pre-Consultation Business Case (PCBC) which referred to potential options for future services that had been considered; for stroke services this included an option to develop single-site services at SRH and an option to retain appropriate safe service delivery at STDH in order to maximise patient choices. The PCBC explained that ‘hurdle criteria’ had then been applied to ensure sustainability, high quality of care, affordability and deliverability thereby reducing the number of options to 3, all of which involved the closure of stroke services at STDH. The original list of options was not included within the PCBC, and nor were the CCGs' evaluation of how each option was evaluated against the hurdle criteria or the evidence relied upon in concluding which of the options was to go forward.
The CCG consulted on the 3 options identified, explaining why ‘doing nothing’ was not an option. A Feedback Analysis Report was commissioned which set out the high level of feedback received, including concerns relating to the travel time between South Tyneside and Sunderland. A decision was only then taken to relocate all acute stroke services from STDH to SRH.
A local resident and member of the campaign group, Save South Tyneside Hospital, argued that the public consultation process was unlawful because the final options were too similar and specifically did not include the option to “retain services” at STDH, in contravention of the statutory duty of public involvement in section 14Z2(2) of the NHS Act 2006. Having considered the issues, the Court of Appeal found that the statutory duty, coupled with statutory guidance, resulted in a duty to consult only on the options which represented genuine proposals for change, and therefore dismissed the appeal on the basis that there was no duty to consult on options which the CCGs deemed to be unviable, unrealistic or unsustainable.
A & Marion Keppel v South Kent Coastal CCG and others
This High Court case involved two judicial review challenges to the decision of the Joint Committee of CCGs in Kent and Medway to close the existing acute stroke unit at the Queen Elizabeth the Queen Mother Hospital (QEQM) in Thanet and establish three HASUs elsewhere in the region.
Prior to making the decision, the CCGs launched a Stroke Services Review resulting in the publication of a Case for Change, embarked upon extensive public engagement and commissioned a pre-consultation Integrated Impact Assessment covering the impact of the proposals on health, travel and access, and equality. The CCGs also developed a Pre-Consultation Business Plan supporting the decision to develop stroke services at existing acute hospitals rather than develop new sites.
In determining which sites to use, a theoretical long list of 127 options was reached and then whittled down using ‘hurdle criteria’ to develop a medium list. This resulted in 13 options, with QEQM featuring in 7.
Whilst all the medium list options were considered to be acceptable as having met the hurdle criteria, the evaluation of those options sought to weigh the advantages and disadvantages in accordance with specified evaluation criteria, namely: (i) quality of care; (ii) access to care; (iii) workforce; (iv) ability to deliver; and (v) affordability and value for money. This evaluation process produced a shortlist of 5 options for public consultation, none of which included QEQM as a proposed HASU site.
The CCGs consulted on the 5 options and extensive feedback was received raising concerns about ceasing stroke services at QEQM and the increased travel times for people in Thanet, prior to a decision being taken to close the existing stroke unit at QEQM.
The claimants and an interested party (Medway Council) argued that the consultation was flawed because all 5 options put forward for public consultation involved the closure of stroke services at QEQM. There was, therefore, no effective public consultation as to the future of stroke services at QEQM.
In her judgment, Mrs Justice Farbey rejected this argument in finding “[t]he defendants built public involvement into their decision-making process. There was significant public involvement across the various stages by which they reached the new three-HASU model. Having involved the public in the development of evaluation criteria, the application of those criteria produced a short list of proposals for change. Those criteria were rational and were applied rationally.”
It is apparent that Mrs Justice Farbey was influenced by the fact that QEQM was referred to in the consultation document and consultees were specifically asked for their views on the potential advantages and disadvantages of the proposed options or any other option, and a considerable amount of feedback was received on the proposed closure of stroke services at QEQM which the CCGs considered. It is therefore plain that those who wanted to respond to the consultation were able to do so and to give their views about QEQM.
Common to both of these cases was the fact that decisions were taken to close stroke services at STDH and QEQM respectively, without including within the formal consultation process any options which involved retaining stroke services at those hospitals. Looking at this a different way, decisions were taken to stop stroke services at these hospitals prior to formal consultation taking place. However, where the public has been fully involved in the decision making process by way of pre-consultation engagement and had the opportunity within the consultation to provide feedback on the decision to close services, or where the option to retain services is simply not viable, the Court has found the duty to involve is satisfied in any event.
This recognises the complexity of developing transformation proposals affecting essential NHS services across a large geographical area, and the fact that there is no prescribed formula for satisfying this duty but rather the commissioner has a wide discretion in this regard.