Might Courts intervene on who is in the co-production room?

This is Blog no 29

A potential legal challenge in Manchester could raise some fascinating issues

According to the well-known legal firm, Irwin Mitchell, Craig Hamilton, 47, of Hulme, has been using mental health services for 25 years and says he is likely to require support from services that are subject to redesign for the rest of his life. His solicitors claim that there has been inadequate user involvement in the proposed service changes.

What particularly caught my attention was the following: 

…Service users expressed their concerns saying the Trust failed to involve, or consult them, in the decision making, and were not invited to take part in, or made aware of, the co-design process which took place at events in January and February.

Whether or not this goes to the High Court – which I doubt – it raises some fundamental issues because it is yet another signal that we may be entering a new phase in Consultation law, with Judges prepared to consider allegations that various forms of public engagement may not be satisfactory.

Irwin Mitchell faces a number of hurdles to win this case. One is the traditional reluctance of Courts to interfere with the discretion of consultors as regards their choice of methods of consultation. My reading of nearly 200 Judicial reviews suggests that, in general, Judges seem over-impressed with the quantum of consultation; how many leaflets distributed?  how many responses received? how many meetings held? etc.  There are only a few cases where the specific activity has been ruled sufficiently inadequate, and some of those have tended to be about over-dependence upon online methods.

To my knowledge, no-one has successfully argued that focus groups were manipulated, that meetings were improperly scheduled and advertised or that unrepresentative groupings were given a disproportionate influence over a decision. And one can see why. How does one make such value judgments?  It is one thing to say that the number of responses was insufficient; quite another to say that the east of the county was not effectively represented when initial options were considered.

The Third Gunning principle is where I think we may see some movement.

In keeping with its origin in 1985, it is about allowing sufficient time for a consultation, but the underlying logic must be that consultees must be given sufficient opportunity to be heard. Time is merely a proxy for opportunity. So, in the potential Manchester case, might we see an argument that fairness requires anyone who has a reasonable case for being included in a service design exercise – to have the opportunity to participate? But it comes up against the practicalities that NHS Trusts and Integrated Care Boards (ICBs) may provide services for thousands. How do they choose who is in the room?

Over the years, Communications, or Engagement Managers responsible for patient and public involvement have evolved machinery to ensure that those involved in options appraisal or co-production are reasonably selected, but accidents happen and not everyone shows up. There are also many variants of co-production, and not all conform to the purist notion that user voices should carry as much weight as Managers, no matter how expert. There are also long-standing concerns about ownership and accountability – especially if anything goes wrong.

Fortunately, most of the problems can be addressed, and there is one rather obvious safeguard for which I have campaigned for years. Basically, we should regard most co-production (or co-design, or co-specification etc ) as an options development activity and then proceed to validate the output or outputs in a proper consultation exercise. In this way, NHS and other consultors can assemble working groups that are capable of undertaking the task without worrying excessively about any imbalance of representation, and in the knowledge that voices that want to be heard have a good opportunity to express their views before decisions are taken.

Reading the Craig Hamilton case press release, I get the impression that this is what the Greater Manchester Mental Health trust may have had in mind anyway. Sadly, the verdict of community campaign group CHARM(Communities for Holistic Accessible Rights based Mental Health) is that it is all too little too late. In its own words:

“…the consultation that has been taking place has been a tick box exercise with crucial decisions regarding the allocation of funds having already been made and partially implemented. Meetings that did take place were presentations not consultations.”

The real solution lies in better standards, especially for co-production and other participative and deliberative processes. In the meantime, if this does go to Court, it will be a rather interesting case.

Rhion H Jones LL.B

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Commentaries are prepared primarily to help consultation practitioners take account of developments in the law and to guide them on situations where legal advice should be sought. They are no substitute for reading Court judgments or studying statutory provisions or associated Guidance.

Rhion Jones LL.B has monitored and written commentaries on the Law of Consultation since 2007 but does not provide legal advice. He will, however, be happy to discuss the content of this or any other commentary.