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	High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Buick, Re Application for Judicial Review [1999] NIQB 13 (03 June 1999) URL: http://www.bailii.org/nie/cases/NIHC/QB/1999/13.html Cite as: [1999] NIQB 13

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In re an application by Buick v Minister for Health in Northern Ireland
Queen's Bench Division (Crown Side)
COGC 2864, (Transcript)
HEARING-DATES: 3 June 1999
3 June 1999

PANEL: Coghlin J

JUDGMENTBY-1: COGHLIN J

JUDGMENT-1:

COGHLIN J:

The Applicant in these proceedings, Claire Angela Buick, is a member of the Jubilee Action Group which was formed in February 1998 in order to oppose and bring about a reversal of the decision of the Minister for Health and Social Services in Northern Ireland, Mr Anthony Worthington MP promulgated on 13 November 1997 to centralise maternity services at the Royal Maternity Hospital. In arriving at this decision the Minister accepted the recommendations of the Independent Medical Review Panel led by Professor Liam Donaldson ("the Donaldson Committee") which included, in the short-term, the transfer of the Belfast City Hospital Jubilee Unit to the Royal Maternity Hospital.

Factual background to the proceedings

In 1991 the Eastern Health and Social Services Board ("the Board") embarked upon a comprehensive strategic review of the general (acute) hospital services in its area. This exercise involved extensive consultation with a broad spectrum of individuals and interest groups and the outcome was the publication by the Board of "The Strategy for for rationalising services between the hospitals on both sites. Baroness Denton agreed with the Board's overall approach to maternity services, which included recognition of the need for more choice for expectant mothers, and she specifically endorsed the Board's view that, in the longer term, only one consultant obstetric unit would be required as between the Belfast City Hospital and the Royal Group of Hospitals. She confirmed that she had asked the Steering Group to consider this specific issue.

The report of the Acute Hospitals Re-Organisation Project, under the chairmanship of Dr McKenna, published its paper "Seeking Balance" in January 1996, this being the third in a series of papers relating to the re-organisation of the Belfast City Hospital and Royal Group) of Hospitals. At Section 4 of the paper, the McKenna Committee dealt with Maternity, Gynaecology and Neonatology noting that, ideally, all three services should be together. At paragraph 4.4 the Committee recorded that consultant obstetricians and neonatologists had pointed out physical inadequacies present in both hospital units, emphasising that their desired option was the creation of a new single unit on either site. The Committee referred to the City Hospital estimate that a newly built regional maternity/neonatology unit would cost more than £10m while the Royal Group had estimated that a sum of £16m would be required. The Committee noted that money had not been reserved in the Management Executives Capital Development Plan for Northern Ireland for this purpose. They also considered the costs of renovating and bringing up to date the existing services at each hospital.

In a majority judgment the Steering Group adopted the proposal that maternity services, together with neonatology and gynaecology, should be provided in the BCH Tower. The main arguments in support of this proposal were set out at paragraph 4.7. "Seeking Balance", together with the other papers published by Dr McKenna's Committee, were then circulated for comment and consultation and was made the subject of a Policy Appraisal and Fair Treatment ("PAFT") appraisal.

Subsequent to the closing date for consultation on 5 April 1996 Dr McKenna's Steering Group met five times and, in addition, a number of informal bipartite and multipartite discussions took place. The Group then published a review of "Seeking Balance" in the context of the results produced by the consultation process. In the course of this review it was noted that the proposals relating to maternity services had received the most media attention and stimulated the most obviously concerned responses. After noting that some of the responses took the form of "propaganda" and could be safely ignored, the Steering Group characterised the main arguments as "geographical, spatial, financial and professional". The Group dealt with each of these in turn and summarised the professional argument as follows:

"The professional argument centres on the proximity of neonatology services to the main paediatric hospital. There are unquestioned benefits in their being close to one another but there is not agreement on whether the distance between RBHSC and BCH is of real significance. In 1994 the obstetricians and neonatologists of both sites wrote jointly to the Steering Group stating their desire for a new maternity hospital on one or other site without stating a preference for either site. Since the proposal to use the Tower emerged, there has been much professional comment, mainly from consultants, predominantly critical of the separation. The criticisms were not convincing to the members of the Steering Group who favoured the initial proposals: neither did they convince the members of the Eastern Health and Social Services Board GP Forum. Nevertheless, the views are strongly and conscientiously held and must be treated with respect."

Ultimately, the Steering Group confirmed the set of proposals which included the location of obstetrics/neonatology and gynaecology at Belfast City Hospital.

On 19 March 1997, Malcolm Moss, the then Minister for Health and Social Services, published his decision on sixteen specialties at the Royal and Belfast City Hospitals which included maternity services. He recognised that maternity services was one of two specialties which had stimulated particular public concern -- the other being accident and emergency services. The Minister went on to say that he had concluded that neither the Jubilee Unit at Belfast City Hospital nor the Royal Maternity Hospital was suitable for a new state of the art regional maternity unit and that both should close to be replaced by a new maternity unit in the first three floors of the modern BCH Tower. This decision generated an application for Judicial review in April 1997 spearheaded by John Ashton Dodge of Queen's University and the Royal Belfast Hospital for Sick Children, Nuffield Professor of Child Health. This application was based on the argument that the Minister had failed to acknowledge or to take properly into account scientific evidence that separation of paediatric services from neonatal intensive care was associated with an increased risk of neonatal mortality and that it was preferable to concentrate maternity and neonatal services on sites adjacent to sub-specialist neonatal and paediatric services. In a replying affidavit filed in those proceedings, the Chief Executive of the Health and Social Services Executive confirmed that the Minister had taken into account this argument but, ultimately, that he had not been persuaded that the "Tower Block" proposal would entail any additional risk to neonates provided that the measures identified by the Department's medical advisers were addressed sympathetically by the Board and the two Trusts concerned. These judicial review proceedings did not proceed and, on 10 May 1997, the General Election took place.

On 2 July 1997 the new Minister for Health and Social Services in Northern Ireland, Anthony Worthington MP, announced the setting up of an independent medical review panel as ". . . part of his review of the decision to centralise Belfast maternity services at the Belfast City Hospital". In the course of this announcement the Minister said that he appreciated that there were clinical questions about the separation of maternity and regional paediatric services and that he had asked for independent medical advice to be provided by an independent medical review panel, led by Professor Liam Donaldson, in relation to the issue as to whether the proposed centralisation of maternity services was soundly based, given all the clinical evidence available. The panel was to report to the Minister by the end of October 1997. Apart from Professor Donaldson, this panel consisted of Dr David Field, Consultant Paediatrician and senior lecturer at Leicester Royal Infirmary, Dr Qureshi, Consultant Paediatric Cardiologist at Guys Hospital and Professor Murdo Elder, Consultant Obstetrician at Hammersmith Hospital. The panel was also to have the assistance of Dr Bill Kirkup, an Obstetrician and Public Health Physician from Professor Donaldson's Regional Office.

On 11 September 1997 Mr Worthington wrote to both hospital Trusts referring to the setting up of the Donaldson Committee and pointing out that:

"There are, however, issues other than clinical related to this decision. I have therefore decided to write to all of those individuals/groups who were insulted by my predecessor Mr Malcolm Moss MP in August 1996, inviting their views/comments on the non-clinical aspects of the recommendation from the AHRP to centralise maternity and associated services in a new unit at the BCH Tower Block. Such aspects might include for example social, economic and 'women's rights' issues."

The "Report of the Medical Review Panel" (the "Donaldson report") was published on 31 October 1997. At paragraph 14 of the report, Professor Donaldson confirmed that the remit of the review body had been restricted to the review of the clinical effectiveness of the decision taken by the previous Minister, but went on to maintain that it was impossible to carry out such a review in isolation from the alternatives, actual and potential. He said:

"The effectiveness of a particular service configuration can only be assessed relative to other options, rather than as an absolute. We have therefore given some consideration to alternatives, but this aspect of the work has necessarily only been as an overview rather than in detail."

In summarising its conclusions at paragraph 38, the Donaldson Committee again emphasised that the most pressing requirement was to bring together the maternity, neonatal and gynaecology services that were currently split between the two sites. At conclusion 2 it recorded that:

"The AHRP Committee) recommendation to move maternity, neonatal and gynaecology services to the BCH Tower addressed the central issue of unification. In the light of the options to achieve this which were available for consideration, the recommendation was understandable and justifiable."

At conclusion 3 the Committee expressed the view that the "high quality solution" for these services would be to create a configuration in which the mode of transfer for a sick baby was a short "push" via an internal corridor and not an ambulance journey and, at conclusion 4, it recorded that whilst an interim solution that maintained the separation between the neonatal unit and the specialist paediatric services might be sustainable in the short term, in the longer term it would impact on clinical effectiveness adversely by inhibiting the development of high quality services. The Committee made several recommendations the first of which was that the ultimate goal for these services should be to develop a new unified maternity block to have direct access to the Royal Belfast Hospital for Sick Children and to provide the facilities necessary for a regional perinatal centre. The Committee suggested that plans that represented value for money and were affordable should be drawn up and thoroughly tested without delay and an unambiguous timescale established for implementation. The Committee recognised that the ultimate goal might take significant time and in such circumstances recommended that plans should be formulated to allow an interim unification of maternity, neonatal and gynaecology services. At recommendation 3, the Committee stated that if this was achieved on the Royal site the proper long term solution would not be blocked off as it would be by the BCH proposal.

On 13 November 1997 the Minister announced that, following the review by the Donaldson Committee, he had decided that maternity services would be centralised at the Royal Maternity Hospital and that a purpose-built hospital on the Royal Group of Hospitals site would provide the best possible maternity care in the future. It is this decision which the Applicant seeks to overturn.

The parties' submissions

While the detailed and helpful arguments of counsel contained in both their oral submissions and skeleton arguments, ranged over many different aspects of the impugned decision and, to some extent, inevitably overlapped, Mr Weir QC, who appeared on behalf of the Applicant with Ms Higgins relied upon three main grounds:

(i) Illegality

Mr Weir QC argued that by including material outside its original terms of reference the Donaldson Committee and, in due course, the Minister erred in law by exceeding their jurisdiction. Mr Weir QC submitted that the terms of reference set out for the Donaldson Committee in the Minister's announcement of 2 July 1997 effectively restricted the Committee to a review of the ". . . clinical questions about the separation of maternity and regional paediatric services". He argued that the Committee should not have taken into account other issues without first ensuring that it had the authority of the Minister to do so and that, in his turn, the Minister should have ensured that the general public and all other interested parties were made fully aware of the expanded terms of reference. In support of this submission, Mr Weir QC relied upon the decision of Carswell J, as he then was, in Re Gribbon [1990] 6 NIJB 15.

(ii) Bias

Mr Weir QC identified a number of circumstances which, in his submission, indicated that there was a real danger that the impugned decision had been produced as a consequence of bias. Inter alia, Mr Weir QC referred to the pre-election promise of the Secretary of State for Northern Ireland made to Ms Inez McCormick of UNISON to the effect that she would hold a post-election review of the decision of the McKenna Committee, the fact that Ms McCormick was chairperson of a group lobbying to retain maternity services at the Royal Victoria Hospital, that she had been a political friend of the Secretary of State for some years prior to the decision and that the Secretary of State's constituency was sponsored by UNISON. Mr Wier QC also suggested that the composition of the Donaldson Committee reflected an in-built bias towards determining the issue in favour of siting the services close to the paediatric facility at the Royal Victoria Hospital.

(iii) Procedurally unfair

In relation to this aspect of the case, Mr Weir QC focused upon a lack of consultation in relation to at least one crucial matter and, at the same time, criticised such consultation as did take place as being ineffective and inadequate in the circumstances. He submitted that the decision by the Donaldson Committee to reverse the recommendation of the McKenna Committee depended largely, if not entirely, upon the proposition that a new specialised maternity hospital should be built at the Royal site. He pointed out that such a project had been specifically excluded from consideration by Dr McKenna upon financial grounds and argued that it was completely unfair to reinstate such a concept without consulting and seeking representations from not only the Royal and City protagonists, but also from the rest of the general public. Mr Weir QC also criticised the manner in which the Minister had undertaken consultation with regard to the "non-clinical" issues and suggested that the procedure adopted in relation to the deliberations of the McKenna Committee, by way of publishing a draft and seeking representations, was much to be preferred to that followed in relation to the Donaldson decision.

Mr Weatherup QC, who appeared with Mr McCloskey for the Department, rejected the case put forward on behalf of the Applicant as being based upon two fundamentally false premises. He denied that the review of the recommendations of the McKenna Committee had been restricted in the manner alleged by the Applicant and maintained that, at all times, it had encompassed a consideration of both "clinical" and "non-clinical" issues which, respectively, had been the responsibility of the Donaldson Committee and the relevant Minister, namely, Mr Worthington. Mr Weatherup QC said that this had been made clear by the terms of the notice announcing the setting up of the Donaldson Committee.

Mr Weatherup QC also refuted the assertion by the Applicant that the provision of a newly built maternity facility was the factor upon which Professor Donaldson's recommendation to locate maternity services at the Royal site depended. According to Mr Weatherup QC the basic issue considered by the Donaldson Committee was the long standing question as to whether or not paediatric and maternity services should be linked and it was only when the Committee had decided in favour of such linkage that it had then proceeded to recommend a newly built facility as being the best way in which such linkage could be achieved in practice. While he accepted that the provision of such a new building would require to be the subject of, inter alia, detailed economic and PAFT analysis, Mr Weatherup QC emphasised that the unity of paediatric and maternity services preferred by the Donaldson Committee was an independent and free-standing decision.

In the context of these basic propositions, Mr Weatherup QC submitted that the argument that both Professor Donaldson and the Minister should have restricted themselves to clinical issues was untenable and he referred to correspondence with the representatives of Belfast City Hospital. In response to the allegation of bias, while acknowledging the relevant correspondence, Mr Weatherup QC emphasised that the pre-election undertaking to the McKenna decision had been given by the Secretary of State to Dr Hendron rather than to Ms McCormick. Furthermore, he emphasised that the Secretary of State had subsequently delegated the responsibility of carrying our the review to the Minister who had the responsibility of ultimately deciding whether or not to accept the recommendations of the Donaldson Committee.

Finally, referring back to his basic propositions, Mr Weatherup QC emphasised that there had been adequate and detailed consultation as to whether to establish unity between paediatric and maternity services and confirmed that the Department remained ready and willing to engage in detailed consultation about and appraisal of the building of a new specialised maternity facility.

Conclusions

(i) Illegality

The Applicant's argument under this heading centred upon the alleged failure of the Donaldson Committee and, subsequently, the Minister to remain within the limits of the Committee's original terms of reference. Those terms were specifically recorded by the Committee at paragraph 2 of its report as follows:

"The medical review panel is asked to consider whether the recommendation of the Acute Hospitals Re-Organisation Project Steering Group that maternity, neonatal and gynaecology services should be transferred from the Royal Maternity Hospital and the Jubilee Maternity Unit to the Belfast City Hospital's Tower is soundly based, in terms of clinical effectiveness, given all of the clinical evidence available."

At paragraph 14 of his report, Professor Donaldson confirmed that the remit of his Committee had been restricted to a review of the clinical effectiveness of the recommended decision, but went on to advise the Minister that it had proved impossible to do this in isolation from the actual and potential alternatives. He expressed the view that the effectiveness of a particular service configuration could only be assessed relative to other options, rather than as an absolute, and stated that, in such circumstances, the Committee had given consideration to the alternatives, but only as an "overview" rather than in detail. It was in such a context that the Donaldson Committee was able to agree that the McKenna recommendation to move maternity, neonatal and services to the BCH Tower had been both understandable and justifiable in the light of the options available for consideration, but that the ultimate goal should be the development of a new unified maternity block to have direct access to the paediatric facility at the Royal Belfast Hospital for Sick Children and to provide the facilities necessary for a regional perinatal centre.

While the original remit from the Minister to Professor Donaldson does appear to have been limited to the question of whether the transfer to the BCH Tower Block was soundly based, in terms of clinical effectiveness, given the clinical evidence, I do not think that it is at all surprising that a Committee consisting of independent distinguished medical professionals should, if they felt it appropriate to do so, express the view that the original remit was too restricted. It seems to me that, in expressing such an opinion, and providing the reasons as to why it was held, the Committee was doing no more than properly and effectively discharging its function as a source of expert advice.

Furthermore, it is important to bear in mind that the decision which is under challenge in these proceedings is the decision of the Minister and, in the press notice of 2 July 1997, Mr Worthington made clear that the commissioning of the Donaldson Committee was only a "part" of his review of the decision to replace the Royal Maternity Hospital and the Jubilee Maternity Hospital with a new maternity unit in the Belfast City Hospital Tower. On the day before this announcement, 1 July, 1997, the Minister had written to the chairman of the Belfast City Hospital Trust notifying him of the forthcoming review, and confirming that, as part of his review, the Donaldson Committee was to be established and consulted. The final paragraph of this letter read:

"As I said earlier the establishment of a medical review panel is one strand of the review which I am undertaking. I intend, in addition, to consult on other aspects of the decision and I will therefore be writing to you again in the next few weeks inviting comments in that regard."

On 11 September 1997 the Minister wrote a further letter to the chairman of the Belfast City Hospital Trust again indicating that there were issues other than clinical related to his decision, and inviting any appropriate comments from the Trust upon any non-clinical aspects of the matter. Examples given in this letter included ". . . social, economic and 'women's rights' issues".

In my opinion the Minister was perfectly entitled to take into account the advice which he received from a body of highly qualified medical experts that his original remit required to be expanded in order for the issue to receive proper consideration and I am also satisfied that at all material times, it was clear that the deliberations of the Donaldson Committee formed only one part of the review undertaken by the Minister. In such circumstances, subject to the issue of consultation which I will deal with later in this judgment, I reject the argument based on illegality.

Bias

The Applicant's challenge to the impugned decision upon the ground of bias was based on the admitted long standing political friendship between Ms Inez McCormick and the Secretary of State for Northern Ireland through their common interest in UNISON and Ms McCormick's position as chairperson of the joint Liaison Group "Keeping Maternity and Children's Services Together in the Royal Hospitals". In particular, Mr Weir QC referred to the letter from the Joint Liaison Group to the Secretary of State of 16 May 1997 welcoming the latter to Northern Ireland and thanking her for her interest and promise ". . . to review Maternity Services as a matter of priority". He suggested that the letter from the Minister for Health and Social Services of 22 July 1997 to Ms McCormick seemed to indicate that she had "an inside track" and that there was significance in the wording used by the Minister when he referred to ". . . the decision by the previous administration to centralise maternity services in the Belfast City Hospital. Mr Weir QC also drew the attention of the court to the fact that the joint Liaison Group, which had not been consulted in relation to the McKenna decision, had been added to the group of bodies to be consulted by Mr Worthington whereas no such arrangement had been made to consult with the equivalent BCH group "The Friends of the Jubilee".

In R v Gough [1993] AC 646 Lord Goff expressed the test for bias in the following terms, at page 670:

"Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him;"

In R v Gough Lord Goff expressed the view that the same test should be applicable to all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or jurors, or with arbitrators. In R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 the Gough principle was amplified and applied to the case of a coroner who was alleged to have shown obvious hostility to the next of kin. Both the cases of Gough and that of Dallaglio involved allegations of bias against persons involved in carrying out judicial functions, in the case of Gough, a juror, and in Dallaglio, a coroner. In R v Secretary of State for the Environment ex parte Kirkstall Valley Campaign Limited [1996] 3 All ER 304 Mr Justice Sedley, as he then was, applied the Gough test to a non-judicial body namely, an urban development corporation fulfilling functions as a planning authority. After reviewing a number of authorities, Mr Justice Sedley expressed the following view at page 323:

"Not only is there, therefore, no authority which limits the Gough principle to judicial or quasi-judicial proceedings; there are sound grounds of principle in modern public law for declining so to limit it. The concrete reason, which is not always given the attention it deserves, is that in the modern state the interest of individuals or of the public may be more radically affected by administrative decisions than by decisions of courts of law and judicial tribunals. The individual who has just been tried for a minor road traffic infraction will not be much comforted by the fact that he was tried with the full safeguards of the criminal law if on returning home he finds that an administrative decision in which he had no say is going to take away his home or his job."

He went on to hold that the principle that a person is disqualified from participation in a decision if there is a real danger that he or she will be influenced by a pecuniary or personal interest in the outcome is of general application in public law and not limited to judicial or quasi-judicial bodies or proceedings. Then, at page 325, the learned judge made the following observations:

"How then will the principle apply to a body exercising town and country planning powers? In the case of an elected body the law recognises that members take up office with publicly stated views on a variety of policy issues. In the case of an urban development corporation the Secretary of State will have had regard, in making his appointments, to 'the desirability of securing the services of people having special knowledge of the locality' (para 2(2) of Schedule 26 to the 1980 Act), as well as to the pro-active purpose of the corporation set out in Section 136(1) 'to secure the regeneration of its area'. In both cases, where pre-determination of issues or forfeiture of judgment is alleged, the court will be concerned to distinguish within the statutory framework, legitimate prior stances or experience from illegitimate ones."

It seems clear that what amounts to bias in a domestic body, as opposed judicial or quasi-judicial body, likely to depend upon a careful consideration of the framework of rules and laws within which that body operates notwithstanding that some of its functions may have judicial characteristics.

Applying these principles to the facts of this case I have come to the conclusion that the case founded upon the allegation of bias should be rejected. It is a perfectly natural function of political parties in a democratic society, while in opposition, to undertake to repeal or review some act or decision of their predecessors, should the electorate see fit to return them to power. In this case the Royal joint Liaison Group contacted the Secretary of State, who had given the relevant undertaking to Mr Hendron whilst she was in opposition. At all material times, this undertaking had been widely publicised and was openly referred to by the Minister for Health and Social Services in his letters notifying the chairman of the Board and Trusts of the Donaldson review in July 1997. The Royal joint Liaison Group contacted the Secretary of State who informed the Group in her letter of 19 June 1997 that the review of Mr Moss' decision would be carried out by Mr Worthington. In such circumstances, quite properly, she expressed the view that it would be inappropriate to meet with the Group at that time. The Friends of the jubilee Group was not formed until 1998, subsequent to Mr Worthington's decision. In such circumstances it seems to me that the evidence falls far short of identifying any interest on the part of either the Secretary of State or the Minister of Health and Social Services which was such as would ". . . create a real danger that he (or she) would instinctively oppose or favour one course rather than another" to use the words of Sedley J at page 317 of his judgment in R v Secretary of State ex parte Kirkstall Valley.

Breach of the duty to act fairly

In relation to this ground, Mr Weir QC concentrated his argument upon the alleged failure by the Department to afford adequate consultation with regard to the "new build" option at the RVH site prior to adopting the recommendations of the Donaldson Committee. In his submission the Applicant had a legitimate expectation that such consultation would take place.

In the course of giving judgment in R v Devon County Council ex parte Baker and another [1995] 1 All ER 73 Simon Browne LJ provided a timely and helpful analysis of some of the distinct senses in which the phrase "legitimate expectation" has recently come to be used. The second of the four broad categories therein distinguished by the learned Lord Justice contained those cases in which the law recognises that a claimant has an interest in some ultimate benefit which he or she wishes to retain. In such cases, it is the interest itself rather than the benefit which is the substance of the expectation and, in accordance with the requirements of procedural fairness, the law recognises that the interest cannot be properly withdrawn or denied without the claimant being given an opportunity to comment and without the authority communicating rational grounds for an adverse decision. Where a legitimate expectation of some procedural fairness in the decision-making process is established, it remains for the court to determine whether that expectation ought to be recognised and, if so, to measure the nature and extent of the requirements of fairness in the particular circumstances. The fourth category defined by Simon Browne LJ comprised those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. In such cases the authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice.

Later, in the same judgment at page 91, Simon Browne LJ approved the four part statement of the basic requirements of consultation originally formulated by Stephen Sedley QC in argument and adopted by Hodgett J in R v Brent London BC ex parte Gunning (1986) 84 LGR 168:

"First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third . . . that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."

In this jurisdiction Carswell J, as he then was, in Re NUPE and COHSE's Application [1988] 255 has emphasised that the nature and extent of the consultation required may vary quite widely with the circumstances and may very well vary between the different classes of persons or bodies to be consulted, the test being an objective one to be determined by the court.

The Respondent's answer to the case of procedural unfairness put forward by the Applicant was that the impugned decision was based upon the need to unify paediatric and maternity services. The Respondent maintained that this was a "free-standing" decision, not in any way dependent upon the "new build" hospital. The "new build" hospital was simply the optimum way in which the basic unity of services could be realised and, in due course, it would be the subject of consultation, costing and PAFT consideration. Mr Weatherup QC submitted that the unity of paediatric and maternity services was a topic which had already been the subject of detailed debate and consultation over a number of years.

I have carefully read and considered the report of the Donaldson Committee in the context of Mr Weatherup QC's well constructed submissions. In the section of the report entitled "Context; How the Original Decision Came About" Professor Donaldson recorded the options put forward to Dr McKenna's Committee and noted that the option of a newly built regional maternity/neonatal unit on either the City or RVH site had been excluded from consideration by Dr McKenna who had been told that finance was not available. In the section of the report headed "Weighing Up the Proposal to Unify on BCH Site" the Donaldson Committee confirmed that no option to unify the specialist paediatric and maternity services had been available to Dr McKenna's Committee and that, in such circumstances, the recommendation of the latter had been "understandable and justifiable". Professor Donaldson noted that the absence of such an option appeared to be linked to the lack of capital and he suggested exploration of Public-Private Partnership Funding. Accordingly, at paragraph 2 of its conclusions the Donaldson Committee expressed the view that:

"The AHRP recommendations to move maternity, neonatal and gynaecology services to the BCH Tower addressed the central issue of unification. In the light of the options to achieve this which were available for consideration, the recommendation was understandable and justifiable."

In the "recommendations" section of the report, Professor Donaldson recommended that the "ultimate goal for these services should be the development of a new unified maternity block on the Royal site providing the facilities necessary for a regional perinatal centre and suggested that plans which were affordable and represented value for money, should be drawn up and thoroughly tested without delay. Recognising that this ultimate goal might take significant time to bring to fruition, Professor Donaldson recommended that unification of maternity, neonatal and gynaecology services should take place at the Royal site so that the proper long-term solution would not be blocked off as it would by the proposal adopted by the McKenna Committee and Mr Moss.

In my opinion it is impossible to resist the conclusion that the concept of the "new build" specialist maternity unit at the RVH site was a factor of fundamental importance for Professor Donaldson when his Committee was framing its recommendations to Mr Worthington. It was the fact that such an option had been specifically excluded from consideration by the McKenna Committee which rendered that body's recommendation "understandable and justifiable" in the eyes of the Donaldson Committee. It was the recognition and acceptance of such an option that led the Donaldson Committee to recommend the interim unification of maternity, neonatal and gynaecology services at the Royal site, rather than BCH, so that the ". . . proper long term solution would not be blocked off . . .

The issue then arises as to whether the "new build" option should have been the subject of consultation and it seems to me that there are a number of relevant factors to be taken into consideration:

(i) In the course of making their original presentations to the McKenna Committee as to where the unified single maternity unit for central Belfast should be located both the BCH Trust and RVH Trust had included a proposal that a new specialist maternity unit should be built upon their respective sites. Neither of these proposals received detailed attention after it was made clear that the requisite capital would not be available. In such circumstances, it seems to me that basic principles of fairness would require that, if such a concept was to be revived, both sides should have been given a proper opportunity to consider and comment thereon. In practice, while it appears from paragraph 12 of Professor Donaldson's second affidavit that his Committee did receive an assurance from the RVH Chief Executive that it would be possible to accommodate a unified gynaecology service on the RVH site, it is significant that none of the Respondent's affidavits or submissions included a claim that the BCH Group was ever made aware that the "new build" concept was being actively considered.

(ii) In July 1996, after a review in the context of the results of consultation, Dr McKenna presented the recommendations of his group to the then Minister of Health and Social Services, Mr Moss. The Minister, appreciating that Dr McKenna's report would give rise to a great deal of controversy, particularly in relation to the maternity issue, decided to consult widely on the options with which he had been presented and met a range of interested parties, including local MPs. Mr Moss also commissioned a high level economic appraisal of the two options put forward by Dr McKenna and arranged for an additional PAFT appraisal to be completed. In all, a period of some nine months elapsed between publication of the McKenna recommendations and the decision taken by Mr Moss. By contrast, the Donaldson Committee, which was established in July 1997, reported to Mr Worthington on 31 October 1997 and he announced his decision to accept the Donaldson recommendations on 13 November 1997. In this case, the Donaldson proposals were not made available for public consultation, despite the decision to reverse the McKenna proposals and the significance of the role played by the "new build" unit. In my view the approach adopted by the McKenna Committee and Mr Moss provided a fair and open model of procedure which the Applicant was entitled to expect would be followed in relation to any proposed reversal of Mr Moss' decision at least in so far as any new factor of significance was concerned.

(iii) During the course of the hearing reference was made to circular CIRC HSS (OP1) 1/93 which, inter alia, sets out a procedure to be adopted by Trusts and Boards in relation to individual proposals for closure or change of use of medical facilities. While it is correct that this Departmental Circular did not place any direct duty upon either the Donaldson Committee or the Minister to consult in any particular fashion or at all, it does seem to me that it may be relied upon by the Applicant by way of analog in the course of her argument that consultation was required. Furthermore, Mr Worthington does appear to have accepted that consultation was necessary in relation to "issues other than clinical" and, in his letter of 11 September 1997 to the Belfast City Hospital Trust he suggested that these might include, for example, "social, economic and 'women's rights' issues". Mr Worthington duly wrote to all of the individuals/groups who had been consulted by his predecessor in August 1996 but, apart from this letter, he does not seem to have further defined any of the non-clinical issues about which he required representations to be made. In any event the concept of the "new build" unit does not appear to have been included.

(iv) During the course of the hearing it was accepted on behalf of the Respondent that, to date, no specific funding has been made available or promised for the "new build" unit, no business or development plan has been produced and the private/public partnership idea suggested by Professor Donaldson has not been further developed.

In the circumstances, I consider that the "new build" unit was a significant factor in arriving at the impugned decision in relation to which the Applicant and other interested parties had a legitimate expectation that adequate consultation would be afforded together with an opportunity to make any representations that might be appropriate in the circumstances. This expectation has not been fulfilled. Accordingly, I propose to grant an order of certiorari quashing the Minister's decision.

DISPOSITION:

Application granted.