Hinsull, R (On the Application Of) v NHS Dorset Clinical Commissioning Group, Court of Appeal - Administrative Court, September 05, 2018, [2018] EWHC 2331 (Admin)

Resolution Date:September 05, 2018
Issuing Organization:Administrative Court
Actores:Hinsull, R (On the Application Of) v NHS Dorset Clinical Commissioning Group

Neutral Citation Number: [2018] EWHC 2331 (Admin)

Case No: CO/5867/2017




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 5 September 2018



(Sitting as a High Court Judge)

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Jason Coppel QC and Joanne Clement (instructed by Leigh Day) for the Claimant

Fenella Morris QC and Annabel Lee (instructed by Capsticks) for the Defendant

Hearing dates: 17th and 18th July 2018

Further Written Submissions until 25 July 2018

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Judgment Approved

Sir Stephen Silber:

  1. Introduction

    (i) The Dispute

    1. The Claimant seeks to challenge the decision of the Dorset Clinical Commissioning Group (``the CCG'') of 20 September 2017 which made significant changes to the configuration of health services in the Dorset area. The CCG is responsible for commissioning and paying for NHS services in that area. Like many similar bodies, it had been facing pressure on its funds to continue providing healthcare in the way that had been provided previously because of changing health needs and because of an increasing demand for services. The Claimant's Statement of Facts refers to Dorset facing ``a crisis of health and social provision''.

    2. After a consultation process which the Claimant contends is flawed, the CCG took a series of decisions (``the Decisions'') which are the subject of the present application. The Decisions are of particular importance to the Claimant, who sadly has nineteen different health conditions and is heavily dependent on safe access to emergency health care at Poole General Hospital (``Poole Hospital'') which is close to her home in Langton Maltravers. She frequently needs to be admitted to Poole Hospital as an emergency patient.

    3. Before the Decisions were made, Poole Hospital was one of three hospitals in Dorset giving acute care which is short-term treatment for patients with any kind of illness or injury. The other two acute hospitals in Dorset were the Royal Bournemouth Hospital (``Bournemouth Hospital'') and the Dorset County Hospital (``Dorset Hospital'') in Dorchester.

    4. The Claimant is particularly concerned about two aspects of the Decisions relating to Poole Hospital. First, it would no longer be an emergency hospital. Instead it would become a ``planned hospital'' and the Accident and Emergency (``A& E'') Department would be downgraded to a GP-led ```urgent care centre'' with emergency care only being available at Bournemouth Hospital and at Dorset Hospital. She is very troubled about the additional time required for travelling from her home to Bournemouth Hospital rather than to Poole Hospital. In the period from 2015 to 2017, she had 31 hospital admissions and there have been more occasions where ambulances were needed for her.

    5. Second, Poole Hospital's Specialist Maternity Unit would be closed and its consultant-led maternity and paediatric services would be delivered only from Bournemouth and Dorset Hospitals. In addition, further consultation would take place on whether Dorset Hospital would share its consultant-led Maternity and Special Care Baby and Paediatric services with Yeovil District Hospital.

    6. There are many other challenges to the Decisions as explained in paragraph 36 below. As I will explain, the CCG contends that it was entitled to make each of the Decisions under challenge and therefore that the Claimant's challenges should be rejected. It contends that decided cases show that the CCG had a broad discretion as to how it should have gone about making the Decisions under challenge. As I will explain, the CCG relies on various other reasons why the Decisions should not be quashed. The organisation of the judgment after the Introduction is as follows:

      *The Statutory Framework is dealt with in paragraphs 30 and 31 below.

      *The Issues are dealt with in paragraph 36 below.

      *The Applicable Legal Principles are dealt with in paragraphs 40 and 41.

      *Issue 1: The Sufficiency of Social Care Workforce Issue is dealt with in paragraphs 42 to 91 below.

      *Issue 2: The Alternative Investigations Issue is dealt with in paragraphs 92 to 102 below.

      *Issue 3: The New Bed Closure Test Issue is dealt with in paragraphs 103 to 125 below.

      *Issue 4: The Travel Times Issue is dealt with in paragraphs 126 to 157 below.

      *Issue 5: The Consultation Issue is dealt with in paragraphs 158 to 175 below

      *Further Matters are dealt with in paragraphs 176 and 177 below

      *The Conclusion is dealt with in paragraph 178 below.

      *The Appendix contains a Summary of the SWAST Report.

      (ii) Why Dorset needed to change the way its Health Services were provided

    7. Dorset is a large and predominantly rural county but even within its urban areas, travel is problematic. Prior to the time of the Decisions, Dorset had (apart from 13 community hospitals all with some beds) three acute hospitals, with approximately 1,810 acute hospital beds available. First, Bournemouth Hospital is located in the far east of the county, not far from the Hampshire border. Prior to the Decisions, the hospital had 741 beds. Second, Poole Hospital is located in the eastern half of the county, but more centrally than the Bournemouth Hospital. Prior to the Decisions, it had 654 beds. Dorset Hospital, which is located in Dorchester to the west of the county, is a smaller hospital. Prior to the Decisions, it had 415 beds.

    8. Prior to the Decisions, each of these three hospitals had A&E Departments. They all had maternity units, although Bournemouth Hospital's maternity unit was only midwife-led. It delivered 350 babies compared to over 4,500 babies at Poole Hospital last year. Each hospital offered planned services, although there was some degree of specialisation between the hospitals. For example, cardiac cases went to Bournemouth Hospital, while trauma and emergency maternity cases were dealt with at Poole Hospital. It was also the busiest county maternity unit delivering two-thirds of the county's babies born in hospital and providing Dorset's only neonatal unit offering high-dependency and intensive care.

    9. By the early part of the present decade, Dorset, like the rest of England, had been facing, and was continuing to face, a crisis. This meant as was explained in the consultation document that ``doing nothing is not an option because by staying the same our healthcare would get much worse''. Six causes of this crisis, which are particularly significant are that:

    10. On a national level, the crisis in both the NHS and social care sector has been widely reported. Independent research had established that NHS funding was at least £4 billion lower than was needed in 2018/19.

    11. Dorset's A&E capacity was described in the Claimant's Statement of Facts as ``seriously over-stretched''. A&E departments declared numerous OPEL alerts (diverting patients) last winter, waiting time targets had been missed on more than 200 occasions in December 2017 alone. The social care sector was facing unprecedented funding cuts with (a) Dorset having to make savings of £5.6 million from its adult social care budget; (b) Poole Borough Council projecting at least a £1 million shortfall in funding; and (c) Bournemouth Borough Council having to make savings of £4 million. In March 2017, BBC research placed Dorset in the top 30 areas of the country where discharge from hospitals was delayed by a lack of social care provision.

    12. Demand for health and social care services within Dorset was, however, increasing with a population older than the national average. This placed particular demands on the health and social care system. More people were living longer, with more complex and long-term conditions. By 2023, the population of Dorset will have grown from around 750,000 to over 800,000 with older people making up much of this increase. Estimates predicted a 30% increase in demand for acute hospital beds by 2026. The Claimant's Statement of Facts observes that ``Demand for hospital beds is predicted to grow significantly from the currently unsustainable levels due to demographic and other pressures''.

    13. There were also national and local shortages of staff with key specialist skills. Dorset faced particular challenges in recruiting staff employed in the health and social care sectors. Dorset also had a high number of staff approaching retirement age and difficulty in filling vacancies.

    14. The CCG was spending more money than it received, and it was facing a shortfall of some £158 million each year by 2020/2021.

    15. The CCG concluded as a result of its pre-consultation analysis that the current model of NHS care in Dorset could not continue as it would increasingly fall behind the needs of the people of Dorset and their carers as well as becoming increasingly unaffordable.

    16. This growing crisis caused healthcare providers and commissioners in the UK to attempt to ensure that more care was delivered in the community rather than in acute hospitals. The CCG is the main healthcare commissioning body for the whole county of Dorset. It was, and is, responsible for the planning, development and purchasing of high-quality, safe and sustainable health services for local people. In keeping with other parts of England, the health economy had for a number of years been struggling to provide the very best quality of care for people in Dorset.

    17. National evidence, particularly the comprehensive review of NHS emergency and urgent care published in 2014 by the NHS Medical Director, Sir Bruce Keogh, showed that many people, who then attended A&E Departments could achieve better outcomes and less disruption to their lives by receiving urgent care in community settings, while patients with more serious or life-threatening emergency care needs had to be treated in specialist emergency care centres so as to maximise the chance of survival...

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