This case concerns a decision by the East Derbyshire Primary Care Trust to engage the services of an American healthcare company (UHE) based in the UK to provide GP services for two north east Derbyshire villages. The claimant a local resident, S, challenged the decision and applied to the court in judicial review proceedings to quash the decision of the PCT. S’s ground for doing so was that the PCT failed to perform its statutory duty of consultation under s11 (1) of the Health and Social Care Act 2001. This section provides for consultation with those for whom services are provided for when arrangements are made for securing health services and any decisions that are to be made affecting the operation of those services. There are a number of avenues open to a Patient’s Forum where a s.11 duty to consult may not have been complied with. It may require the PCT to produce information to it relating to the possible failure. It may refer its concerns to the relevant Overview and Scrutiny Committee (OSC). The OSC has wide ranging powers to review and scrutinise the PCT. A Patient’s Forum may also refer its concerns to any other body as it thinks fit which would include a referral to a Strategic Health Authority.
In the High Court, the Defendants and Secretary of State contended unsuccessfully that s.11 did not apply to the decision to negotiate with UHE. S was therefore successful in her challenge to the lawfulness of the decision to negotiate with UHE but she failed to persuade the judge to grant her any relief. He dismissed her claim but awarded her 75% of her costs. The main reasons for refusing her relief was that (i) there was an alternative remedy i.e. the Patient’s Forum which has a statutory duty to monitor and review to obtain the views of patients and others and to make reports and recommendations on services provided by the PCT; (ii) judicial review was a last resort and (iii) the PCT would have reached the same decision even if it had considered S’s views. In other words, representations by S would have made no difference. S appealed to the Court of Appeal.
In the Court of Appeal, the PCT claimed that the decision was only a provisional decision which gave UHE preferred bidder status and no more, with terms of engagement to be negotiated. The claimants submitted that if there had been proper consultation then there may have been a different result and the PCT’s application of the competences against which the tender process was judged was not informed by the proper statutory involvement and consultation with patients. The application of the criteria may have been different thereby producing a different outcome.
The Court of Appeal held that it was the PCT’s statutory duty to consult and it could not avoid or mitigate the performance of that duty by pointing out that S could have gone to the Patient’s Forum when she did not. The defendants had a duty to consult and they did not properly perform it. Mobilising the patient’s function after the decision had been taken without proper consultation was no remedy. The possibility that the Patient’s Forum might have been mobilised before the decision was made when it was not, neither provided a remedy nor relieved the defendants from their breach of duty. The PCT could not say that there might not have been a different preferred bidder had there been proper consultation at the proper time. This was fatal to the PCT’s case and its decision to engage UHE as a preferred bidder was quashed.