When South Tees NHS Foundation Trust made the decision to suspend A&E services at the Friarage Hospital in North Allerton last March to be replace with an Urgent Treatment Centre, it was quickly met with public outcry. In short order, a ‘Save Friarage Hospital’ group was established, and solicitors instructed to apply for judicial review of the decision. Although permission was given for that judicial review to go ahead, the application was withdrawn when the Trust and relevant CCG backtracked and agreed to hold a full consultation on the decision. This was only the first episode of the saga though.

Upon publication of the consultation document and other materials Rhion Jones, our Founder Director, made the rare decision to criticise the consultation as possibly “the worst consultation narrative of the year” in a piece on the Institute’s website. Specific criticisms were raised about the language, style and content; confusion and contradictions over the potential options and evidence supplied; the inadequacy of impact assessments; and a lack of evidence that any particular public concerns were being addressed. In short, it was a deeply disappointing paper that implied only a loose association with the usual processes of consultation.

It seems we were not the only people to think this, as a new application is being considered for judicial review by the Save Friarage Hospital group on the grounds that the consultation breached the relevant statutory duty and breached expectations of procedural fairness. Particular concerns have been raised about the absence of an option to retain a limited form of A&E department and the apparent dearth of information about potential other solutions to staffing shortfalls. Solicitors have written to the trust and CCG expressing their concerns, the usual first step in the judicial review process. The NHS trust has responded to the letter by issuing a statement of its own, defending the consultation process and highlighting difficulties in recruitment of staff.

So was this not just a contentious consultation, but an illegal one? That will be for the High Court to decide if they grant permission for the JR to go ahead. From our perspective, the whole situation demonstrates the necessity of a solid and well thought out consultation process. The risks of a weak consultation can go far beyond delay to decisions, and the Institute always encourages consultors to think both their process and their narrative through thoroughly to insulate them from potential legal challenge.