R (Nettleship) v (1) NHS South Tyneside Clinical Commissioning Group (2) NHS Sunderland Clinical Commissioning Group [2020] EWCA Civ 46 

This article originally appeared in Issue 4 (March 2020).

This was a judicial review of a hospital reconfiguration decision following a consultation by the Clinical Commissioning Group (“CCG”). The appellant contended that the decision breached s.14Z2(2) of the NHS Act 2006 and/or followed an unlawful consultation process contrary to the principles set out in Gunning v Greater London Council [1985] 11 WLUK 47; that it was Wednesbury unreasonable; and that the CCGs should have considered it in the light of government decisions to remove doctors and nurses from the immigration cap for skilled worker visas and to provide additional NHS funding. The claim failed on all grounds both at first instance and on appeal. The case has some importance because it provides helpful guidance on what a decision maker has to consult upon having regard to the relevant statute and guidance. As Davies LJ held, the wording of s.14Z2(b) of the 2006 does not impose a duty on the decision-maker to consult on options which the decision-maker (here the CCG) deems to be unviable, unrealistic or unsustainable as they do not represent “proposals for change” [56] and that the duty of consultation is only on those options which present “genuine proposals for change” – [59] per Davies LJ. The case also underlines the difficulty which will often confront those who challenge these kind of decisions, that minor procedural or even substantive failures of process are unlikely to result in relief because the outcome of the decision-making process is not likely to be “substantially different” if the impugned conduct had not taken place.