Case digest

No legitimate expectation to be cared for in preferred premises
R (LINDLEY) v TAMESIDE MBC [2006] EWHC 2296 (Admin)
The claimant, Thomas Lindley, aged 69, suffered from cerebral palsy and was severely disabled. He was doubly incontinent, had arthritis and dysarthia, a speech impediment and was wheelchair bound.

For the last 20 years he had lived at Katherine House, a council-run care home, which the council wished to close. The council communicated its intentions to the residents and assured them, including the claimant, that they would be able to move to a new facility and have their care needs met there. The proposal was for the care to be met in supported living accommodation, in Lomas Court.

The council’s nursing assessment of the claimant concluded that he required 24-hour care by two workers in a residential setting, a level of care unavailable at Lomas Court. He claimed that in several letters to him, he was promised care at Lomas Court, and this created a legitimate expectation that he would be moved and have his assessed needs met there, whatever the level of need. He argued that to frustrate that expectation was so unfair as to amount to an abuse of power.

The council’s argument was that, in the circumstances, the correspondence had not created a legitimate expectation, and that it would be contrary to the claimant’s welfare needs for it to be required to move him to the new care facility.

HELD
Initially the claim had alleged a failure by the council to consult or assess needs, or address its mind to the risks of the new premises. This claim was subsequently withdrawn and a second, ‘legitimate expectation’ challenge was made. For most of the period since the letters had been written, the claimant had not relied on them, and so it could not be argued that they gave rise to a legitimate expectation that was enforceable. It was also clear that, from the abandonment of the initial judicial review claim until the second judicial review claim, the claimant had accepted that the care facility could not provide for his care needs. The evidence before the court showed that the claimant had not wanted to rely on the current argument until after he abandoned the initial judicial review claim.

The council’s knowledge of the claimant’s needs had developed since it made the original assurances, and so it was right to have changed its conclusions as to how his needs were to be met. Even if there was an enforceable expectation, it was contrary to his welfare needs for the council to be required to move him to Lomas Court, and as such the application failed.

Consultation under s.11 Health and Social Care Act 2001
R (Morris (On Behalf of Health in Trafford)) v Trafford Healthcare NHS Trust [2006] EWHC 2334 (Admin)

The claimant, Pat Morris, worked for a period as a staff nurse at Altrincham General Hospital (AGH), and had for many years been involved with a number of local health groups. It was in this capacity that the claim was brought.

AGH was established in the 1870s with three inpatient wards.The hospital trust offered a number of services, including a nurse-led minor-injuries unit, inpatient rehabilitation services, outpatient services, phlebotomy, x-ray and allied health services. The trust closed the wards without any public consultation.

Ms Morris applied for judicial review of the decision, arguing that the trust’s decision was unlawful as it had been made without consultation, in breach of Section 11 of the Health and Social Care Act 2001, which makes provision for public involvement and consultation by healthcare bodies in relation to proposals or plans that may be under consideration.

The trust accepted that it had not consulted, but that the decision was taken urgently on the grounds of clinical safety. It relied upon an expert’s report that indicated that the wards were unsuitable for acute care as there was a risk of an untoward clinical incident occurring and recommended that inpatient services should cease as soon as possible.

HELD
Evidence before the court confirmed that the wards were intended to be used for rehabilitative care and were not expected to be used for patients needing acute care. Therefore, the expert was misinformed as to the function of the wards, and his recommendation was based on a misunderstanding that they were being used for acute cases.

There ought to have been consultation under s.11 of the Act about the closure of the wards, as the need to close the wards was not so urgent that it could occur without it. As such, the decision to close the wards was unlawful and was quashed.

The court did not order that the wards should be reopened but accepted that the trust would consult publicly. The conclusions reached following the consultation process might lead to the reopening of the wards if the evidence supported that conclusion. If the evidence did not support that conclusion, then the reopening of the wards followed by an early closure would be wrong.

The extent of the consultation under s.11 of the Health and Social Care Act 2001
Pam Smith v North Eastern Derbyshire PCT & Secretary of State for Health CA (Civ Div) 23/8/2006
Following a tendering process for general practitioner services in respect of two surgeries, the PCT decided to engage an independent company to provide those services. Pam Smith challenged the decision on the ground that the PCT had failed to consult under section 11 of the Health and Social Care Act 2001. Although the High Court judge had found that there was a breach of the statutory duty under s.11, as there had been insufficient involvement of and consultation with patients, he refused to grant relief. His reason was that Ms Smith had not exhausted an alternative remedy of involving the Patients’ Forum, which has wide ranging duties to monitor, review and promote public involvement in decision-making by PCTs. He also added his doubt as to whether, even if the PCT had received and considered the claimant’s views, it would have reached a different decision.

Ms Smith appealed against the High Court judge’s decision on the basis that he had erred in refusing relief on those grounds.

HELD

A Patients’ Forum does not have the power or status to decide whether s.11 of the 2001 Act applied, or to require a PCT to reverse a decision. The statutory duty to consult could not be avoided or mitigated by an approach to a Patients’ Forum. The facts of the case were clear, in that the PCT had failed to consult. Its involvement of the Patient’s Forum after the decision was made did not provide a remedy for Ms Smith. As such, the judge had erred in finding that Ms Smith had an alternative remedy available to her and in refusing relief on that basis.
The probability that the PCT would have reached the same decision following the required consultation was not sufficient, as the PCT had to show that the decision would inevitably be the same in order to avoid the review process. The PCT had considered the competence of the independent company to fulfil patients’ needs, without being properly informed by the consultation process. As such, it was not possible to say that the PCT would not have selected a different provider if the proper consultation had occurred at the proper time. This proved fatal, and so Ms Smith was entitled to relief and the PCT’s decision was quashed.

Case digest compiled by Caroline Bielanska, joint chair, Solicitors for the Elderly. She can be contacted at caroline.bielanska@ntlworld.com