Decision day for Hunt

Hunt has to decide by tomorrow whether to appeal his defeat over the Lewisham Hospital closure - but if he succeeds in overturning it no hospital will be safe.

Ruby Waterworth
20 August 2013

Picture: Ruby Waterworth

If you’ve walked through Lewisham in the past couple of weeks, you will have noticed a lot of red. Everywhere you look – attached to residents’ t-shirts, bus stops, park railings and windows – bright red badges and posters, glinting in the sun, read: "Victory for Lewisham! Hunt Defeated." The posters have been laminated – they’re not going anywhere any time soon.

The victorious posters appeared after attempts by Jeremy Hunt to cut services and downgrade departments at Lewisham Hospital were quashed on 31st July in the High Court. Following a vigorous campaign and legal challenge led by the Save Lewisham Hospital campaign and the local council, Justice Silber ruled that Hunt and his appointed administrator Matthew Kershaw had acted ultra vires – or beyond their powers.

Immediately following the verdict the Government said they planned to appeal Silber’s decision. Hunt has until tomorrow, Wednesday 21st August, to decide whether he will follow his threat with action.

Local campaigners working with 38 Degrees are petitioning Hunt to accept the ruling and not waste any more of taxpayers’ money on trying to close Lewisham Hospital. They point out the government has already spent over £5 million (including £3 million to management consultants from McKinsey and others) trying to come up with plans to sort South London’s their PFI-driven financial crisis. Plans which - controversially - dragged in the entirely separate and financially solvent Lewisham Hospital.

Given the huge cost and overwhelming public and legal opposition to Hunt’s plans for Lewisham, why would he appeal? And why is it so important for us, the public, to oppose such a move?

Hunt and the Government stand to gain much more than a cheap victory from successful appeal. Lewisham is a test case for Hunt’s plans for major hospital reconfiguration and prioritising PFI investments above all. Hunt wants to use the controversial “Trust Special Administration” powers beyond the confines of the failing Trusts they were designed for, to any Trust he feels like. Why?

Don’t have a sick neighbour

With Private Finance Initiative (PFI) debts of £89 million, by last year South London Healthcare Trust was spending £1 million per week more than its income. In response Jeremy Hunt invoked emergency “Trust Special Administration” procedures - the first time such powers, created by amendments to the 2006 National Health Service Act, had been used.

But the Administration plans, when unveiled, involved not just breaking up South London Healthcare Trust (SLHT) - but also downgrading services in an entirely separate, locally popular and financially solvent hospital Trust: neighbouring Lewisham Hospital.

By reducing services at Lewisham, SLHT’s Administrator Matthew Kershaw planned to transfer patients - and therefore funding - over to neighbouring South London.

Kershaw argued that these plans were ‘necessary if the Government wishes to cease the substantial cash support it currently has to give SLHT to maintain its operations’. In other words, to sacrifice Lewisham to help a neighbouring Trust service its otherwise unsustainable private debts. A successful appeal, permitting the Trust Special Administrator to carry out these plans, would put every hospital at risk of being sacrificed to bail out neighbouring hospitals’ PFI schemes.

Paying these PFI charges ‘is one of the first calls on the NHS budget’, according to the House of Commons Public Accounts Committee. The Department of Health already expects to pay £1.5 billion, or £60 million per year, to bail out the seven Trusts facing the greatest private debt burdens.

Expensive debt interest and ongoing maintenance, cleaning and catering contracts with private firms mean that the taxpayer ‘owes’ a total of £121.4 billion on public projects worth only £52.9 billion.

Redirecting money, not saving it

There are gaping holes in the argument that cutting services at Lewisham would save the taxpayer money. Jeremy Hunt has already had to set aside £73 million additional funding for all other south-east London hospitals to deal with displaced patients. The true cost could be far higher - on 24 July Health Minister Anna Soubry wrote to Heidi Alexander, MP for Lewisham East, confirming that King’s College Hospital alone has requested £130 million in capital funding to pay for changes to SLHT.

The total annual savings to be made from closing down Lewisham Hospital services were calculated at £19.5 million; the total capital investment costs for these changes would be £195.2 million.

By his own estimate the cost of Administrator Kershaw’s major service reconfiguration of Lewisham Hospital services would take 10 years minimum to pay back.

Fast-tracking hospital closure

The Trust Special Administration regime is supposed to be used in exceptional cases of clinical or financial failure in which a quick response is needed.

The consultation process to close Lewisham took a quarter of the time that major service reconfigurations would normally - the recommendation to close large parts of Lewisham hospital was made only 6 months after the Administrator was appointed, compared to the normal two years for such a major decision.

Unlike with other re-configurations, the Administrator does not need to show that the decision has passed the ‘Four Tests’ – support from GP Commissioners, public engagement, clinical evidence and patient choice - only that he has “had regard” for them.

As Justice Silber pointed out in Court, the patients of the Trusts subject to Trust Special Administration recommendations have "greatly reduced" influence over the future of their hospitals.

Silber was at pains to emphasise the use of the Special Administration process in only the most pressing cases of non-performance: "remedy of almost the last resort." The same process, he argued, was not to be used on ‘solvent and successful’ Trusts such as Lewisham Hospital Trust.

A foregone conclusion?

In fact, the inclusion of Lewisham Hospital in the reconfiguration plans for SLHT was decided before the TSA consultation process took place, according to documents acquired by the Save Lewisham Hospital campaign.

In a memorandum to Jeremy Hunt, signed off by NHS Chief Executive David Nicholson and dated 20 April 2012, two months before SLHT was put into Special Administration, Matthew Kershaw said that the major changes required in SLHT were likely to impact on hospital services across south-east London as a whole, including services outside of the existing SLHT organisational boundary.

He argued that these changes, under the never-before-used Special Administration regime, would send "an important signal of intent to the wider system...Providing more resource without a requisite improvement in outcomes gives SLHT and the broader NHS a dangerous signal those organisations with similar ongoing problems will be supported financially rather than addressing the core of the problem."

The Special Administration regime is a warning not only to failing trusts that they will be subject to swift and major service and organizational change, but also to successful trusts who must expect to share the cost of paying for failure and unsustainable private debt.

In short, the Special Administration process would enable Government to reduce resources and funding from one successful NHS Trust to fund another failing trust, without increasing the overall NHS budget. If these plans were to be approved in court and the TSA regime implemented in other failing trusts, the cost to the NHS of PFI debt, compared to the cost of vital service provision, will grow disproportionately year on year.

An appeal by Hunt would represent a challenge to the very right of the public to be properly engaged in making substantial changes to our health service. It would reveal starkly the prioritisation of investor interests over the interests of patients and the advice of clinical professionals.

Hunt’s appeal is not a vanity, face-saving exercise for a troubled Minister; it is not really about Lewisham at all. If the appeal against Justice Silber’s verdict is successful, this will have wide-reaching implications for the NHS as a whole – no hospital will be safe from reduced consultation and fast-tracked closures.

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