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Court of Appeal dismisses legal challenge over reconfiguration at North East hospitals

The Court of Appeal has rejected a challenge to reorganisation plans by two clinical commissioning groups (CCGs) in the North East but has criticised a lower court judge for delays in issuing his judgment, which created a situation that did not comply with Civil Procedure Rules.

The appeal judges rejected the judicial review application brought by Rachel Nettleship, of the campaign group Save South Tyneside Hospital, against a reorganisation by NHS South Tyneside and NHS Sunderland CCGs.

Under their plan, stroke, obstetrics and gynaecology and paediatric services would be offered only at Sunderland Royal Hospital, not South Tyneside.

Ms Nettleship argued that there had been an unlawful consultation process because this should have happened before the ‘retain services’ option was discarded.

She also said the CCGs should - even if not obliged to consult on the ‘retain services’ option - have explained why they had rejected it and that the options put forward were Wednesbury irrational as they did not meet the stated ‘financial sustainability’ driver for change. She said the CCGs also unlawfully failed to reconsider their decision in the light of two material changes in circumstances announced by the Government.

Nicola Davies LJ said in Nettleship, R (On the Application Of) v NHS South Tyneside Clinical Commissioning Group & Anor [2020] EWCA Civ 46: “I am satisfied that there was sufficient reference to the ‘retain services’ option within the public documents produced at different stages of this process.

“The local public were well aware of this option as it represented the status quo. If it was felt that insufficient information relating to this option had been made publicly available then more could have been requested. This was not done.”

She ruled there had been “genuine engagement with the public and reasons were given as to why the retention of services option was not viable”

The judge also concluded that the CCGs had carried out a balancing exercise between identified risks as against anticipated benefits with no grounds to find these were irrational, and that the Government policy changes did not amount to a fundamental difference in the context of this case.

On 23 July 2019 HHJ Mark Raeside QC had dismissed Ms Nettleship’s claim in the Administrative Court, but in September Lindblom LJ allowed her to take the case to the Court of Appeal.

Sir Andrew McFarlane, President of the Family Division, who heard the appeal with Nicola Davies LJ and Peter Jackson LJ, criticised events in the Administrative Court.

He said the oral hearing on 20 December 2018 had been followed the next day by a full extempore judgment, but the final order was not issued until 23 July 2019 and it was only after that date that the judge was prepared to consider Ms Nettleship’s application for permission to appeal.

The CCGs though had taken the decision announced by the judge in December 2018 as reason to proceed to implement the disputed changes.

“This unsatisfactory situation apparently arose from the position taken by the judge which was to hold that, although he had given a full oral judgment in December 2018 and announced his final decision at that time, the case was not concluded until a written version of his judgment had been handed down in the form of an approved and corrected transcript of the December oral judgment,” Sir Andrew said.

“For reasons of which we are unaware, there was plainly a delay in the process of approving the transcribed judgment so that it was not 'handed down' until 23 July 2019, some seven months after the full oral judgment.”

He recognised the judge may have had difficulties in getting a transcript produced but said that what happened did not comply with Civil Procedure Rules 40.7(1).

Sir Andrew said: “Whatever the reason for the delay may have been, the situation created by this process was plainly most unsatisfactory with the result that the respondents were able to continue to implement the service changes which were the subject of the appellant's claim, however the appellant was not able to appeal the judge's decision, as she was not in receipt of the final approved judgment and no court order had been issued.”

Mark Smulian