C1/2006/1450 
Neutral Citation Number: [2006] EWCA Civ 1291
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT 
(MR JUSTICE COLLINS)
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 23 August 2006
 
B E F O R E:

LORD JUSTICE MAY 
 
LORD JUSTICE KEENE 

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PAM SMITH
Claimant/Appellant 
‑v‑
 
NORTH EAST DERBYSHIRE PRIMARY CARE TRUST 
Defendant/Respondent 
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MR DAVID WOLFE AND MR ROBERT LAZARUS (instructed by Leigh Day & Co., London EC1M 4LB) appeared on behalf of the Appellant
MR ANDREW POST (instructed by Beachcroft Wansborough, Park Square, Leeds) appeared on behalf of the Respondent
MR JAVAN HERBERG appeared on behalf of the Secretary of State
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J U D G M E N T
1.	LORD JUSTICE MAY:  Langwith and Creswell are two small former mining villages in North East Derbyshire.  North East Derbyshire Primary Care Trust is responsible for providing general practitioner services to the villages.  There have in the recent past been problems.  The area was described by Collins J, against whose decision of 15th June 2006 this appeal is brought, as deprived.  Until about three years ago a Dr Khan ran a general practitioner practice which covered Langwith where the claimant, Pam Smith, lives.  Dr Khan had his main surgery in Creswell and a branch surgery at Langwith.  The service provided by Dr Khan was satisfactory but he retired.  The practice was then taken over by a nurse and her husband, Mr and Mrs Lodge, who hired in doctors.  This did not work out well and in 2005 the Parish Council expressed concerns to the PCT in letters which regrettably seem not to have been answered.  However, on 24th October 2005 the PCT served notice terminating the Lodge's engagement.  The PCT then initiated and carried out a tender process which resulted in a decision by the PCT, announced on 23rd December 2005, to move towards engaging United Health Europe Limited ("UHE"), an American‑based health care provider with a United Kingdom Director based in Kingston‑upon‑Thames to provide GP services for these North East Derbyshire villages.  One contender for that appointment who was not short listed was a Dr Elizabeth Barrett, a partner in a neighbouring practice.  
2.	Further details of what I have briefly described may be found in paragraphs 8 to 14 of Collins J's judgment at [2006] EWHC 1338 Admin.  
3.	UHE were not then and have not yet been engaged but the decision was that they should be negotiated with as the preferred bidder.  The engagement of UHE was intended to result in what are called "alternative provider medical services" under section 16CC(2)(b) of the National Health Service Act 1977 (as amended).  Mercifully this appeal does not require the court to deliberate as to what that in detail means, but see paragraph 2 of Collins J's judgment.
4.	Pam Smith, the claimant, challenges and asks the court in judicial review proceedings to quash the decision of 23rd December 2005.  Her ground for doing so is that the PCT had failed to perform its statutory duty of consultation under section 11(1) of the Health and Social Care Act 2001.  That section provides: 
"It is the duty of every body to which this section applies to make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on ‑ 
 (a) the planning of the provision of those services, (b) the development and consideration of proposals for changes in the way those services are provided, and 
(c) decisions to be made by that body affecting the operation of those services." 
The section applies to Primary Care Trusts ‑ see section 11(2).  
5.	The Department of Health has issued policy guidance on section 11, parts of which are reproduced in paragraph 3 of Collins J's judgment.  There are a lot of words in this which do not seem to me, for present purposes, to illuminate the duty to involve and consult patients whose general import is clear.  
6.	The defendants and the Secretary of State contended unsuccessfully before the judge that section 11 did not apply to the decision to negotiate with UHE.  The judge held that it did, not least section 11(1)(c).  There is no cross‑appeal challenging this part of the judge's decision, nor of his further decision that the PCT were in breach of their section 11 duty to consult.  There was a representative of patients' interests on the selection panel.  There had been a meeting on 8th November 2005 with a patients' participation group but those who attended were required to sign a confidentiality agreement and there was no record of what was discussed.  As the judge said, it was not entirely clear to what extent the discussions looked to the future, rather than dealt with the reasons for parting company with Mr and Mrs Lodge.  However that may be, there was no sufficient involvement of or consultation with patients, including the claimant, and that is now accepted.
7.	The claimant, therefore, was 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 although he awarded her 75 per cent of her costs.  The judge's main reasons for refusing relief are in paragraphs 26 and 27 of his judgment where he said:
"There was an alternative remedy. Judicial review is always regarded as a last resort. I am, I am afraid, unimpressed by the contention that the claimant and, presumably, those advising her were unaware of the existence of the Patients' Forum. No attempt has been made to seek to persuade it to intervene. Ms Grey suggests that that remedy would have taken a great deal of time to pursue. If the Patients' Forum had taken the matter up on the claimant's behalf, I find it difficult to believe that the PCT would have gone ahead regardless. But, if it did or if the Forum did not accept that s.11 was in play, the remedy of judicial review could then have been pursued. I think that there is force in Mr Herberg's submission that the claimant should have tried in that way to avoid judicial review. 
I have to ask myself whether, notwithstanding the failure to comply with s.11, relief should be granted. I very much doubt whether, if the PCT had received and considered the claimant's views, it would have reached a different decision. There is no reason why UHE should not provide the sort of service the claimant wants and these proceedings should at least have alerted the PCT to the need to ensure that the contractual terms are such as to achieve what is wanted. These considerations coupled with the existence of an alternative remedy which could have avoided these proceedings persuade me that it would not be appropriate to grant any relief." 
So, the judge gave two reasons:  there was an alternative remedy and representations by the claimant would probably have made no difference.  I do not agree with submissions in writing by Mr Pittaway QC on behalf of the PCT that the judge's primary reason for the refusal of relief was the existence of an alternative remedy.  If anything I read the weight of his decision as being the other way round and I note that Mr Pittaway made a proper concession, which Mr Post accepted also in his oral submissions today, that the judge's conclusion that consultation would probably have made no difference would have been inadequate if it had stood alone to justify refusing relief.  It is also significant that it was not the claimant alone whom the PCT should have consulted.
8.	Mr Herberg's skeleton on behalf of the Secretary of State gives a helpful summary of the functions and responsibility of a Patients' Forum as follows: 
"Patients' Forums, created under section 15 of the National Health Service Reform and Health Care Professions Act 2002 ... have (by section 15(3)) wide ranging duties to monitor and review, to obtain the views of patients and others on, and to make reports and recommendations on, services (and associated arrangements) provided by the PCT.  
They also have specific functions to promote public involvement in consultations and decision making by PCTs (section 16(3)(a)), and in particular to advise PCTs as to how to encourage such involvement, including how and when to carry out section 11 consultations in their area: section 16(3)(c).  They also have the function of monitoring how successfully PCTs have carried out such consultations: section 16(3)(d).  
Where a Patients' Forum is concerned that the section 11 involvement/consultation duty may not have been complied with, there are a number of avenues open to it:  
 (i) It may require the PCT to produce information to it (subject to certain exclusions) relating to the possible failure: Reg 5 of the Patients' Forum (Functions) Regulations 2003, and make reports and recommendations to the PCT in respect of the failure of consultation (s.15(3)(c) of the 2002 Act; 
 (ii) It may refer its concerns, if not satisfied, to the relevant Overview and Scrutiny Committee ("OSC"): section 15(5)(a); 
 (iii) Specifically, if it has concerns that a PCT is not 'carrying out' its section 11 duty of consultation/involvement or is not doing so in a 'satisfactory manner', it may refer the matter to the relevant OSC, provided that it has first made 'all reasonable efforts to resolve the matter with the ... PCT ... and it considers that those efforts have failed': Regs 7(1) and (2) of the Functions Regulations;  
 (iv) The OSC has wide ranging powers to review and scrutinise the PCT, including the PCT's compliance with its section 11 duty: to obtain information, require an officer to the PCT to appear before it, and to make recommendations; see section 7(1) of the 2001 Act, and the Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002, Regs 2, 3 and 6;  
 (v) Finally, a Patients' Forum may refer its concerns to any other body as it thinks fit (section 15(6) of the 2002 Act), which would include a reference to a Strategic Health Authority ("SHA"), which is the performance manager of the PCT.  A SHA has power to direct a PCT about the exercise of any of its functions: section 17B of the National Health Service Act 1977."  
Mr Herberg submits that recourse to the Patients' Forum is highly desirable at a number of stages of considerations such as this and he and Mr Post support the judge's earlier conclusion that the PCT could easily have discharged its section 11 duty by informing the Patients' Forum.  It would then be for the Patients' Forum to see whether any wider consultation or involvement was desirable.  
9.	Although much ink has been helpfully, if I may say so, spilt on the question whether mobilising the Patients' Forum was an alternative remedy such that the court should not grant the claimant relief, it is, I think, at one level a straightforward question.  The possibility of the claimant going to the Patients' Forum after the decision to negotiate with UHE had been taken without adequate consultation was not in the context a remedy at all.  The Patients' Forum had no power or status to decide that section 11 of the 2001 Act applied, contrary to the contention of the defendants, and the Patients' Forum had no power or status to require the PCT to reverse its decision.  It was, in any event, too late for the Patients' Forum to influence a decision which had already been made.  Nor did the historic possibility that the Patients' Forum might have addressed the question, when in fact it did not, whether at the instigation of the claimant or the PCT, affect the fact that the PCT had made its decision without properly performing its statutory duty to consult.  The fact that the PCT might have performed its statutory duty by bringing in the Patients' Forum takes the argument nowhere when in fact they did not do so.  It was the PCT's statutory duty to consult and they cannot avoid or mitigate performance of that duty by pointing out that the claimant could have gone to the Patients' Forum when she did not.  It was their duty not hers.  Mr Pittaway's written submission that if the claimant had mobilised the Patients' Forum this would have been a suitable effective and expeditious remedy because it would have brought about the required consultation takes the defendants, in my view, nowhere and was not, in fact as I understood him, urged on us by Mr Post orally today.  The simple fact is that the defendants had a duty to consult and they did not properly perform it.  Mobilising the patients' function after the decision had been taken without proper consultation was no remedy.  The possibility that the Patients' Forum might have been mobilised before the decision was made, when it was not, neither provides a remedy nor relieves the defendant from their breach of duty.  There is little basis for saying that this litigation would have been avoided if the claimant had gone to the Patients' Forum after the decision was made, when the defendants were wrongly contending that section 11 of the 2001 Act did not apply at all.
10.	I have already noted that neither Mr Pittaway nor Mr Post contended that the judge's second reason, that is that the decision would probably have been the same anyway, was alone sufficient to sustain his conclusion.  That is a proper concession.  Probability is not enough.  The defendants would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of the decision.  Authority for this synthesis may be found in R v Chief Constable of Thames Valley Police ex parte Cotton [1990] IRLR 344 at 352; Simplex G.E. (Holdings) Ltd and another v Secretary of State for the Environment (1989) 57 P & CR 306 at 327; R v Secretary of State for Environment ex parte Brent London Borough Council [1982] 1 QB 593 at 646, and see also Fordham, Judicial Review Handbook (4th Ed) at paragraph 4.5 and Clive Lewis, Judicial Remedies in Public Law (3rd Ed) at paragraph 11‑027.  In the light of this, I think that Collins J applied a wrong principle in paragraph 27 of his judgment.
11.	Mr Post attractively seeks to support the judge's conclusion on what I think are best characterised as general discretionary grounds.  The judge indicated in discussion after he had handed down his judgment that he was concerned that litigation should not get in the way of providing proper health services in the area.  I share that concern and it is of general relevance.  Mr Post says that the decision which the claimant challenges is not a final decision which has led to UHE being engaged.  The decision only gives them preferred bidder status, no more.  Terms of engagement remain to be negotiated and the PCT intend both to consult the Patients' Forum and to address their proper concerns to the extent that they are persuasive in the terms of engagement that will be negotiated.  If UHE will not agree to such terms they will not be engaged.  In this sense, bringing in the Patients' Forum is an effective remedy, although not a remedy in law.  Mr Post further says that the claimant has not mounted any effective challenge to the formulation of the 11 competencies against which the tender process was judged and that therefore consultation with the Patients' Forum, albeit after the first decision was made, will satisfactorily take account of the views of the claimant and other patients.  Mr Post accepts that another view might have been taken about whether the decision of 23rd December 2005 should be quashed, but submits that it was within the proper ambit of Collins J's judicial discretion to decide as he did.  
12.	Mr Wolfe showed us parts of the evidence in support of his submission that if there had been proper consultation either the formulation of the competences may have been different or the application of the competences in their present form may have produced a different result.  The evidence was that the PCT conducted the tender and applied the competences according to their understanding of local needs, but that understanding was not informed by proper statutory involvement by and consultation with patients.  The application of the criteria may, he submits, have been different producing a different outcome.  
13.	Mr Post was constrained to accept that if section 11 of the 2001 Act had been complied with, the 23rd December 2005 decision may have been different.  He could scarcely have contended otherwise in the light of the statement on behalf of the PCT in Beachcroft Wansborough's letter of 24th February 2006 that it was not part of the PCT's case or argument that the outcome would have been no different even with consultation.  This was unsurprising when the PCT's case then was that they did not have a section 11 duty to consult.  
14.	In my judgment, Mr Post's main submission on discretion may be characterised, I trust not unduly rudely, as trying to shut the stable door when the horse has bolted to the meadow.  The decision of 23rd December 2005 puts UHE in the position of preferred bidder.  If the section 11 duty had been performed the PCT might have been negotiating with a different preferred bidder.  It is not, I think, in those circumstances a proper exercise of judicial discretion to refuse relief by saying that latter day consultation with the Patients' Forum and accommodating their proper concerns in negotiation with UHE is an adequate cure for a breach of duty which could have led to the selection of a different preferred bidder in the first place.  Although I think this is a matter of substance, not merely form, as Bingham LJ (as he then was) said in ex parte Cotton, "this is a field in which appearance is generally thought to matter".  
15.	I would, for these reasons, allow the appeal and, subject to submissions as to the form, quash the PCT's decision of 23rd December 2005.  I doubt if a further mandatory order is needed but am open to persuasion.
16.	LORD JUSTICE KEENE:  I agree.  This court intervenes only reluctantly with the exercise of a discretion by the court below but it is also very unusual for a court to refuse relief when it has held that a public body has acted unlawfully.  In the present case it is clear from the submissions on behalf of the Primary Care Trust that it cannot say that there might not have been a different preferred bidder had there been proper consultation at the proper time.  That, to my mind, is fatal to the respondent's case.  I too therefore would allow this appeal.  I would only add that the sooner the arrangements for the provision of GP services in this part of Derbyshire are sorted out lawfully and finally, the better for everyone.