Morgan Cole recently represented two of the parties involved in the leading Judicial Review case concerning consultation and involvement pursuant to s.11 of the Health and Social Care Act 2001, now section 242 of the Health Service Act 2006 (Fudge v (1) South West Strategic Health Authority (2) South Gloucestershire Primary Care Trust and (3) Secretary of State for Health [2007] EWCA Civ 803).

We acted for both the SHA and the PCT and managed the response by the Department of Health (DH) on behalf of the Secretary of State. The case involved a challenge by a local resident to the procurement of an independent sector treatment centre (ISTC) scheme in Avon, Gloucestershire and Wiltshire to provide pre-planned operations to patients. The scheme was proposed as part of the implementation of Government policy to introduce ISTCs throughout England to assist the NHS in reducing waiting lists and to introduce greater choice for patients.

The procurement of the scheme was led by the DH, with input from the PCT and the SHA at certain stages.  The Claimant contended that, during the procurement process, the SHA and/or the PCT were obliged to involve the public in or consult about the process.  She asked the Court to quash the decision by the DH to select a preferred bidder as a result of the alleged failure to involve/consult.  The Defendants were successful at first instance, but the Claimant appealed to the Court of Appeal.

The Court of Appeal ruled that in the period leading up to the selection by the DH of a preferred bidder, the PCT had an obligation to make arrangements to involve patients or their representatives in the development and consideration of proposals for changes in the way the proposed services were provided by the PCT.  The Court referred to Practice Guidance from the DH as to the extent of this obligation and noted that it varies depending on the stage which planning and development of proposals has reached, the extent of the PCT’s involvement in the scheme and various other factors.  The Court did not have to decide the issue, but commented that it was likely the PCT had complied with its limited obligation in this case by passing on information about the scheme to the Overview and Scrutiny Committee and local MPs and councillors as the scheme progressed.

The case had a novelty element in that the PCT was not the party which decided who would be appointed as the preferred bidder, the DH took that decision.  Legislation is coming into effect on 1st April 2008 which confirms the position outlined in the Court of Appeal judgment (the Local Government and Public Involvement in Health Act 2007 amends section 242 of the Health Service Act 2006).

The successful outcome of the Judicial Review was particularly important for the NHS in the south-west of England, as the surgical procedures to be provided via the ISTC scheme are badly needed to reduce waiting times for patients and to improve the choices that patients have over their treatment.

Our Dispute Management team has significant experience of handling procurement disputes, whether through successful resolution of pre-action complaints that avoid subsequent court action, Judicial Review or other Court challenges.