UNLAWFUL CONSULTATION: THE BRITISH HOMEOPATHY CASE
By Richard Clayton QC
In R(British Homeopathy Association) v National Health Service (England) the BHA challenged the lawfulness of a consultation on “Items which should not routinely be prescribed in primary care” and NHSE’s subsequent decision to implement the proposals in respect of homeopathy by issuing guidance to Clinical Commissioning Groups.¹ The case raised a number of important issues for Supperstone J to address in a judgment given on 5 June 2018.
NHSE were conducting a statutory consultation under s 13Q of the National Health Service Act 2006. The consultation paper, itself, proposed that CCGs cease to prescribe 18 medications including homeopathy treatment.
BHA’s case was firmly based on the Court of Appeal decision in R(Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts.² A consultation document must present the issues in a way that facilitates an effective response:³ see R (Capenhurst) v Leicester City Council.⁴ It must also present the available information fairly.⁵ The statutory objective under s 13Q was the same as that considered by the Court of Appeal in the Royal Brompton case, and required consultees to be involved or engaged.⁶
The sole rationale for the consultation paper’s proposal for homeopathy was a controversial 2010 Report of the House of Commons Science and Technology Committee, which had attracted widespread parliamentary criticism. The Report was written in very technical and abstract scientific terms, and BHA complained that the consultation was unfair because it failed to give sufficient reasons to permit intelligent consideration and response by the ordinary consultee, a breach of the Gunning principles⁷ as recently endorsed by the Supreme Court in R (Moseley) v London Borough of Haringey,⁸ where the Supreme Court’s emphasised that the purpose of consultation was to encourage public participation.⁹
Supperstone J held that the Report satisfied the Gunning principles and that NHSE did not present the consultation issues unfairly by relying on the 2010 Report- without referring to the extensive parliamentary criticism of its conclusion.
More surprisingly, Supperstone J rejected BHA’s complaint that NHSE had failed to undertaken a sufficiently rigorous examination of the public sector equality duty¹⁰ in breach of the Court of Appeal principles set out in Bracking v Secretary of State for Work and Pensions.¹¹ NHSE had failed to examine the adverse impact of its proposals on disabled people (even though they were significantly and adversely affected the proposals) and failed to consider any ways of mitigating those impacts (despite the obligation to justify the adverse impact as being proportionate).
Consultation challenges are never straightforward, as R(British Homeopathy Association) v National Health Service (England) demonstrates.
Richard Clayton QC represented the British Homeopathy Association
¹  EWHC 1359 (Admin
² (2012) 126 B.M.L.R. 134
³ Above, 
⁴(2004) 7 C.C.L. Rep. 557
⁵ Above 
⁶ Above 
⁷R. v Brent LBC ex p. Gunning 84 L.G.R. 168
⁸  1 WLR 3947
⁹ Above Lord Wilson ; see also Lord Reed in relation to statutory consultations 
¹⁰ Under s 149 of the Equality Act 2010
¹¹  Eq. L.R. 60 at  (approved by the Supreme Court in Hotak v Southwark LBC  A.C. 811 per Lord Neuberger at )