Has Jeremy Hunt acted outside the law? - Part 2

Day two and three of the court challenge to the decision to close swathes of Lewisham Hospital.

Jos Bell
9 July 2013

Day Two began with a summary from David Lock QC, for the Save Lewisham Hospital Campaign, that the government has acted outside its legal powers in its actions towards Lewisham Hospital.

Lock outlined how Hunt’s predecessor, Andrew Lansley, appointed Matthew Kershaw as the first appointment under the Trust Special Administrator (TSA) scheme. Once appointed, the TSA acts in place of the hospital Board and takes over the running of THE Trust (ie, South London Healthcare Trust – no other Trust, ie, Lewisham). The TSA has a duty to undertake consultation in relation to THE Trust, and make recommendations to the Secretary of State. There are two options – to dissolve the Trust and disperse the assets and liabilities to neighbouring Trust/s, or to retain said Trust and invoke powers to improve it.

These powers were introduced in 2009. Paragraph 29 of the legislation tells us that the Secretary of State cannot "dabble" and instruct any neighbouring Trust receiving assets / deficits what to do with them.

The campaign’s case rests on important arguments about legal interpretation. Does ‘in relation to’ mean in relation to a specific Trust, namely the South London Healthcare Trust, as opposed to the unnamed Lewisham Healthcare Trust? So would say the prosecution for Lewisham – who added as an example that in the case of personal insurance indemnity cover, it tends only to refer to the named person on the policy, not Mr Buggles next door.

The government’s attempted to circle round this key point, in elegant phraseology from their QC Rory Phillips. Their view of the legal rights under the Trust Special Administration process would appear to infer that the Secretary of State has powers “in relation to” pretty much anything he likes...including Lewisham.

Team Hunt argued that their opponents’ position is flawed because we “have too little regard to the wider position”. The government hold that their own position will benefit not just the people of Lewisham but also the wider NHS (and possibly the world). Mr Phillips then attempted to get inside the mind of Andy Burnham, suggesting that when his government had introduced the Trust Special Administration process they had intended it to be flexible enough to close down parts of other Trusts. Burnham’s letter to Hunt of 9th December 2012 suggests this is just a little inaccurate, but score top marks for effort Mr Phillips!

With his own feet firmly on the ground, Mr Lock said of Section (68 4). "If a wider set of powers were intended it would have included provision to that effect – ie management and imposing decisions on other NHS bodies." Thus, he said, the move on Lewisham was not expressed in law.

The government’s QC also agreed that words are of greatest importance but statutory language apparently has a ‘broadness’. He then closely followed this observation by referring to ‘THE Trust’. Whoops.

The nature of consultation loomed large. Those in the audience who had experienced the process probably found this the most difficult part of the proceedings in which to stop themselves from jumping up and offering useful anecdotes to his Lordship. One key point seemed to get a little lost – should or Lewisham people have been consulted? If the TSA had acted as written then the consultation should have included only those impacted by SLHT services. As it was the ’consultation’ in Lewisham was self-evidently cobbled together and the responses ignored - in particular that of the CCG – on which point, considerably more was to be explored on Day 3.

As Dr Tony O’Sullivan, Paediatric and Children’s’ Services lead afterwards observed:

“the failure to consult on children entirely, the failure to consult on the maternity option adopted, the lack of clinical evidence that would stand up to scrutiny, and the reduction in choice, especially for women came like blow after blow to the Government case.”

The power of the Secretary of State to extend the consultation period to conduct the Lewisham element in line with legislation was apparently “not taken up”.  

AND SO TO DAY 3 and the denouement.

The prosecution began by telling Mr Phillips that his argument was "riddled" with inaccuracies – which predictably didn’t go down very well. Both parties offered key previous cases to show past precedent for their examples including Lumberg, Smith, Wednesbury and Camden plus others with too many names attached for me to note down.  If the Government’s primary argument failed to pull off a victory, they also apparently had a Back-Up Argument secreted up their voluminous black sleeves…

Rory Phillips QC asked Mr Justice Silber to recognise the ‘on balance’ argument adopted by Hunt – presumably as opposed to the ‘in fact’ argument.

For the Lewisham campaign, David Lock QC and Elisabeth Laing riposted that, “on balance – is not an argument which adheres to the legal requirement”, saying that the government “did not approach it in an honest way”.

Crucially, they argued, the government had failed to adhere to the Four Tests that should have been followed: approval from GPs/CCG, approval from clinicians, increased public involvement and patient choice. Instead the government had pursued a “domino approach” to allow back-door re-configuration tactics.

It became evident from quotes from both Hunt and Kershaw that the use of the Four Tests was seen as more of a PR exercise than honouring the spirit and letter of the law. Meanwhile, we were told by Mr Phillips for the defence that in deference to the strength of feeling from the Save Lewisham Hospital Campaign, Mr Hunt had thoughtfully brought in Sir Bruce Keogh to move the result closer to our wishes. Which then begs the question (as was asked) why then did Mr Hunt not open up Sir Bruce’s comments for consultation – at least with the local health bosses, the Clinical Commissioning Group (CCG)? We should recall here that over 400 GPs wrote in protest about the plans to downgrade Lewisham.

For Team Hunt the Four Tests were ‘not black and white tests’, and might - or might not - have been inapplicable.

The government’s QC then expressed indignation that ‘some months’ after the Lewisham announcement was made we find ourselves debating it in Court – as though it were a sudden last minute reaction thought of just a couple of weeks ago.

 As for patient choice, as far as Team Hunt were concerned the fact that patient choice was diminished by much reduced services actually ticked the box because it had been discussed!

After variously dismissing the tests as both inapplicable and fervently adhered to, the defence was rounded on by David Lock QC. He quoted Hunt’s response to local MP Dame Joan Ruddock:

”I have made it clear that any solution would need to satisfy the 4 tests”

and then the Prime Minister:

What the Government and I specifically promised was that there should be no closures or re-organisations unless they had support from the GP commissioners, unless there was proper public and patient engagement and unless there was an evidence base. Let me be absolutely clear: unlike under the last Government when these closures and changes were imposed in a top-down way, if they do not meet those criteria, they will not happen.”

Whatever the Court’s view of said tests, as Mr Lock said it seemed, a promise is indeed a promise. The ‘secret policy’ on the unwritten law of the health economy and hauling in Sir Bruce simply would not do in law. (It also needs to be noted here that it will be at least 50% cheaper to keep Lewisham than to lose it – but that was not a matter for the Court.)

We should also note that Lewisham had offered to take the perfectly legal option of managing its own affairs, working with the CCG, after taking on QEH Woolwich.

As the day drew to a close, matters hotted up with the government’s fall back argument - one for which, the government’s lawyer admitted “there isn’t a great deal of material”. Hmmmm. The timeframe for the TSA consultation was described as a “rush job in the light of an emergency”. The inclusion of Lewisham was examined in the light of another piece of legislation - Section 8 - which contains nothing at all about consultation.

This ruse fell flat. Judge Silber asked if under such a process, the Four Tests would still be needed. A flurry of discussion ensued, with Judge Silber retiring while Team Hunt rummaged around for a response. After 15 minutes we were told that the Four Tests would still apply in any case – as Dr Tony O’Sullivan afterwards said "saving the best until last".

Crucially, under the four tests, proposals must have CCG and clinician support - and the government’s lawyers had already quoted the guidance that this support must come from the lead commissioners for the majority population affected by the measures. But the Lewisham CCG remains unanimously opposed to the TSA proposals and Hunt’s decision.

The government’s QC had said that "the fact the two parties have come at this from different constructions is not surprising because come from completely different standpoints."

He also observed that this would be important for “all future cases contemplated and as yet unconsidered”. Of course he probably knew as he spoke that NHS London had chosen the very same day to announce yet another top down reorganisation, and intended to close 9 A&Es from London's 29 current A&Es over the next 5-6 years.

As David Lock QC said for Lewisham in his closing statement “The commissioners at that hospital, the clinicians and the community’ of that policy have been moved centre stage because of implementation of 4 tests policy.”

The Hon Mr Justice Silber (who had thankfully lifted the intense atmosphere of the hearing with a ready wit) finished by praising the demeanour of the campaigners attending and explaining that due to the complexities of the case he would need to take time to release his findings. We cannot second guess his conclusion – while right is seems to be firmly on the side of the prosecution, we need to stay tuned for the result in 3-4 weeks to find out exactly where the law stands….



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