Cash-strapped health authorities contemplating hospital closures would do well to study a recent High Court judgment if they want to avoid having the process derailed.
The ruling, by Mr Justice Moses, means they may be under a duty to start consultations with the community health council at an earlier stage than they had contemplated.
David Owens of solicitors Bevan Ashford, who acted for North and East Devon HA in the case, said: 'I think it's important in particular in relation to the point at which HAs can be said to be considering closure.
'It does bring the trigger point rather further forward than it has been the practice for HAs to realise.'
North and East Devon needed to find substantial savings to meet a large expected deficit. By April 1997 the closure, at least temporarily, of two community hospitals, Lynton and Winsford, had emerged as the 'best option', although other possibilities were being considered, according to an affidavit by the HA's chief executive.
In June the HA decided, without consultation, to close the hospitals temporarily as from 15 August. NHS regulations place a duty on HAs to consult if they are considering substantial variations to services, but allow a decision to be taken without consultation if the HA is satisfied that this is necessary in the interest of the health service.
The decision caused a local outcry, and three elderly Lynton patients brought judicial review proceedings in the High Court. The judge held that the closure proposal was 'of sufficient cogency' by April to trigger the duty to consult.
A proposal must be crystallised to the extent that it was capable of consideration by the HA, he said. 'But, since it is the trigger for consultation, it need not, indeed must not, be the subject of any final resolution... It must take place while the proposals are still in a formative stage.'
The fact that other possibilities were also under consideration did not mean there was no duty to consult yet.
'It would seriously undermine the purpose of the regulation if a HA could allow time to pass to the point where matters were so urgent that there was no time left for consultation.'