Earlier this month the High Court handed down its judgment in the judicial review case of Glatter v NHS Herts Valleys CCG and West Herts Hospitals NHS Trust [2021] EWHC 12 (Admin). Capsticks represented the Trust in this case. In this insight, we summarise the case and explain what impact the decision will have on the NHS.

What is the case about?

The claim challenged the CCG’s decision to support a Strategic Outline Case (SOC) for major redevelopment of the Trust’s Watford General Hospital site. The redevelopment is being funded under the Government’s Health Infrastructure Plan (HIP). The Claimant, Mr Glatter, argued that it was unlawful for the NHS to rule out a new-build green field site option for the redevelopment without consulting the public first. The position of the Trust and CCG was that they were subject to a legal duty to involve the public, and that it was not always necessary for that involvement to be by way of public consultation. When they shortlisted options for the SOC, it was clear that a new-build green field site option was unaffordable.

The High Court found that the process of options development and shortlisting adopted by the Trust and CCG complied with the statutory requirement for public involvement. That process included some public meetings and the establishment of a stakeholder evaluation panel, which included Healthwatch and patient representatives alongside local authorities, voluntary organisations, clinicians and managers.

The Judge said that it would be inconsistent with the wording of the statutory duty of public involvement to decide that the only way the CCG and the Trust could lawfully involve the public was by full public consultation. Although the CCG and the Trust had controlled the flow of information and had not agreed to the demands of the Claimant and others for unlimited access to information, this was still consistent with the statutory duty of public involvement. In particular, there was no requirement to set out every detail of the calculations and documents behind the cost estimates that had been used in the option evaluation.

Why is it significant?

Most judicial reviews of NHS service changes have followed a full public consultation, and so the Courts haven’t needed to express a view on whether public involvement short of consultation may be sufficient to comply with the duty of public involvement. Glatter changes that, and provides support to NHS bodies that decide to discharge their legal duty without undertaking full public consultation.

How Capsticks can help

There is a complex framework of legislation and guidance that applies to NHS service changes. We can guide you confidently and reliably through this framework having been involved in many of the largest service change programmes carried out by the NHS in recent years, including successfully defending judicial review claims in the High Court and Court of Appeal, and currently advising on both HIP1 and HIP2 schemes throughout the country.

For more information please contact Peter Edwards.