Law Report: Failure to consult about plans for bone unit was unlawful: Regina v North West Thames Regional Health Authority and others, Ex parte Daniels - Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice Macpherson), 17 June 1993.

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A district health authority's failure to consult the community health council about proposals concerning a hospital unit was unlawful. However a formal declaration to that effect would achieve nothing and was refused in the court's discretion.

The Divisional Court exercised its discretion not to grant formal declarations relating to decisions to close the bone marrow transplant unit at Westminster Children's Hospital.

Rhys Daniels, now 21 2 , was found to be suffering from Batten's disease. In July 1992 the bone marrow transplant unit at Westminster Children's Hospital agreed to perform a bone marrow transplant if the ethical committee approved and a suitable donor could be found.

The hospital was due to be closed. Its services, including the unit, were to be transferred to the new Westminster and Chelsea Hospital in 1993. In May 1992 the regional health authority informed the district health authority, the Riverside Health Authority, the unit's transfer was being reconsidered and it could only commit capital to it if its case load was increased and if it could withstand a reduction of charitable funding.

In September 1992 the unit was not to be transferred to the new hospital and proposals to transfer it to the Hospital for Sick Children at Great Ormond Street were being considered. There were problems in the negotiations and vital staff from the unit left.

In November 1992 the ethical committee gave its approval for Rhys's treatment. In December negotiations with Great Ormond Street ended and negotiations to transfer the unit to Hammersmith Hospital began. In February 1993 a donor was found. On 1 April 1993 the unit was closed.

Rhys's father challenges the decision to close the unit. Rhys has now been offered the possibility of treatment at Bristol, subject to ethical committee approval and to a suitable donor being found.

Patrick Milmo QC (Halsey Lightly) for Rhys; Nicola Davies QC (J Tiddle & Co) for the regional health authority and Riverside Health Authority; Mark Shaw (Department of Health) for the Secretary of State for Health.

LORD JUSTICE KENNEDY said that the community health council was established under the National Health Act 1977 to represent the interests in the health service of the public. By regulation 19(1) of the Community Health Council Regulations 1985 (SI No 304) a district health authority was under a duty to consult the council on any proposals for the substantial development or variation of the district's health service. The failure to continue to provide the service offered by the unit anywhere in the regional health authority's area amounted to a substantial variation in the provision of the service. If that occurred as a result of a positive proposal to shut down the unit it could not lawfully have been done unless the district health authority first consulted the community health council. The district health authority could not be in a better position because it allowed the situation to drift.

The failure to consult was material because if the community health council had been consulted when it should have been in May 1992, it might have helped to ensure that the commitment to transfer the unit to the new hospital remained until a satisfactory new home for the unit could be found.

The formal orders sought for declarations to the effect that the unit's closure was unlawful would not be made because they would be of no benefit and would do no good. The unit at Bristol would do all it could and there was no point in quashing a decision to close a unit at a hospital which no longer existed. All that was necessary to say about the failure to consult had been said. There was no reason to grant a formal declaration since nothing would be achieved.

Mr Justice Macpherson agreed.

Ying Hui Tan, Barrister