In The Queen (on the application of United Company Rusal PLC) -v- London Metal Exchange the Court of Appeal has overturned a High Court judgment from earlier this year which had appeared to increase the obligations on public bodies carrying out consultations. The facts of the case relate to the international trade in metals but the principles set out are of direct relevance to any NHS body carrying out a consultation.
The High Court had ruled that the consultation in this case was unlawful because the London Metal Exchange had consulted on one option only. It had not included in the consultation an alternative option which it had reviewed but decided not to adopt. The general rule has always been that a one-option consultation is lawful but that in exceptional circumstances fairness would require the consulting body to include other options. The language of the High Court ruling had appeared to greatly widen the cases in which such exceptional circumstances would exist. The Court of Appeal has firmly rejected the High Court judge's reasoning and restated the principle that a 'one-option' consultation is lawful. The judgment concludes with the following broad statement of principle: The duty [on the public body] to provide sufficient information does not in general extend to providing options or information about proposals which it is not making unless there are very specific reasons for doing so.
The Court of Appeal's ruling also restated the following general principles:
- In challenges to the lawfulness of a consultation the court should only interfere if there is a clear reason on the facts of the case for holding that the consultation is unfair.
- The application of the duty of fairness is intensely case-sensitive: what is fair and what is unfair will always depend on the facts of the individual case.
- The courts will allow the consulting body a wide degree of discretion as to the options on which to consult. The consulting body's obligation is to let those who have potential interest in the subject matter know in clear terms what the proposal is and why exactly it is under positive consideration telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation although it may be quite onerous goes no further than this.
This is a helpful case for NHS bodies as it reinforces their right to consult on proposals they have worked up and considered in detail and where in their view only one appropriate option exists to consult on that option only.
However we sound two notes of caution. First consulting on a single option does not equate to taking a decision and then consulting on it. A consultation will be unfair and liable to be quashed by the courts if an NHS body decides that it will do something and then consults. The correct approach is to identify the preferred option/s and to consult on the basis that this is what you want to do while keeping an open mind. You must be prepared to change your mind and take a different approach having considered the consultation feedback. Secondly consultation is just one part of the NHS's obligation to involve the public. Commissioners and providers have slightly differing duties but a common factor is to involve the public from the earliest stages of service redesign long before the formal public consultation commences.