Has Jeremy Hunt acted outside the law?

The first day of a significant High Court challenge - has Jeremy Hunt acted outside the law in closing swathes of Lewisham Hospital?

Jos Bell
4 July 2013

The first day of JUSTICE FOR LEWISHAM WEEK found a People’s Commission listening intently to evidence about Secretary of State Hunt’s planned fate of Lewisham Hospital.

Fast forward three days to the Strand and the SAVE LEWISHAM HOSPITAL banner is held aloft outside the imposing front entrance to the High Court, heralding the start of the three day Judicial Review hearing in crowded Court 79, where both the Lewisham Borough Council and Save Lewisham Hospital cases against Hunt will be held.  The Courts are as labyrinthine as the Health & Social Care Act and despite the fact that some are probably even now still wandering the portals in search of the hearing, more and more chairs were required to seat the crowd of observers which included campaigners, hospital doctors and GPs, parents, MPs and councillors, policy wonks and journalists. 

Half an hour late it was before all were settled, but Judge Silber seemed to approve the interest in what he designated ‘a very important case’.  Three bewigged legal teams have been appointed to tackle two judicial reviews to be heard conjointly.  Mr Phillips and team for Mr Hunt;  David Lock QC for the Save Lewisham Campaign and Elisabeth Laing QC for Lewisham Borough. 

The case raised by the Borough has a primary focus on Ultra Vires – that Trust Special Administrator Matthew Kershaw acted outside his legal remit by scrambling together a plan which should have focused purely on the South London Health Trust, but chose instead to designate acute services in successful Lewisham Hospital to the land of the demolition squad.  The complimentary case raised by the Save Lewisham Hospital Campaign meanwhile will look at the 4 key criteria set by the government as a means of assessing these plans and the manner in which these were seemingly discarded in favour of a few words from National Medical Director Sir Bruce Keogh.

Firstly we were told the Court would take on the question that Hunt had acted outside his powers. Then we will hear the arguments regarding the allegedly discarded four key criteria – concerning the views of GPs and Clinicians, community engagement and patient choice - thence into the case for the defence.  Thus after so many months of the most intense campaigning, the scene is set for the denouement.

The issues are complex. But none will disagree that Lewisham Hospital is successful and solvent (Sir Bruce was again quoted as saying it ‘offers a respected and high quality service’) and none will disagree that the South London Health Trust had been in a parlous state for quite some time before the final blow of dissolution.       

There is complete agreement that Kershaw was appointed to administer the South London Health Trust. The key question is: has Jeremy Hunt, along with Matthew Kershaw, acted lawfully – or not.  So to the evidence.   

The Trust Special Administrator (TSA) role was introduced in a 2009 Bill additional to the 2006 NHS Act.  The wording and intent of this legislation is a core focus for the examination of Kershaw and Hunt’s actions. Arguments ensued about the relevance of Parliamentary legislation introduced since the January 31st declaration, which designate the CCG as the decision making body rather than the Secretary of State.

After setting out her stall for the prosecution on behalf of Lewisham Borough, Elisabeth Laing explained that she would offer 11 key points to specify why TSA Kershaw had stepped beyond his remit and why this also now implicated the Secretary of State through the ‘pack of cards’ of what soon became their joint recommendations.

When it comes to the law, words are all important. They knit the thread of intent with the fabric of facts. The core points with respect to the initial examination of the Ultra Vires case can best be summarised thus:

  1. Clear and consistent use of words loomed large. Two simple words THE and THAT gained a significant place in the first day’s dialogue. ‘ THE’ it seems is key -  because it refers to THAT Trust and not the other one… Easy also to forget not just simple words, but missing words ‘which simply aren’t there’ can become all important  - in which case contingencies,  variations and approximations of practice peer at us through the foggy windscreen of being outside of the law.
  2. Who knew it – hospitals and healthcare trusts can be described as having differing personalities, which heartened the audience who are all about avoiding confusion between the solvent and the broke, the introvert and the extrovert.  Subjecting a Healthcare Trust of any personality type to the same rules as a Foundation Trust also emerged as being a potentially risky approximation -  taking a  narrow focus within a clear remit may well emerge as being more beneficial before the week is out.

One memorable quote from Ms Laing illustrates the necessary nuance:

“If there are two separate regimes, it must be wrong for the Secretary of State to suggest as he does that the language for the NHS Trusts is wide enough when there is in point of a fact a separate regime for Foundation Trusts because the powers with respect to NHS Trusts are not wide enough”. In other words Hunt cannot have his carrot cake and eat it – nor can he make up a secret recipe.

Of course a Secretary of State can decide to dissolve a Healthcare Trust – they alone have the power as conferred in Paragraph 28 Schedule 4 of the Act – albeit no long the duty to secure it. However if the ministerial postholder likes the thought of bringing in other bodies then it seems that Parliament really should be consulted – rather than simply being told. Past Ministers have come a cropper by making up their own under the counter policies.

Ms Laing went on with further challenges, citing the fact that Parliament has not provided a quick fix for the problems the government are trying to solve by what she termed ‘re-configuring through the back door’. Indeed, wider problems outside TSA brief are – we were told “none of his business!”    

Furthermore – if the Health Secretary wants to implement another rule then he was advised to go back to Parliament and ask for another enactment, rather than make it up as he goes along by topping up the Administrator powers without the accompanying statutory recognition and compromising his independence.  There are already a number of very complex requirements concerning reconfigurations – and so by the end of the day Hunt’s ‘meddling’ seemed to be very ill advised.

Save Lewisham Hospital Campaign Chair, Dr Louise Irvine, who was present throughout the day, summed up her feelings afterwards.

‘I feel we have heard a very strong argument and I hope Justice Silber will think so too. This is a very important issue. It does seem that there has been a huge overstepping of the role of the TSA as I hope will become increasingly clear.’

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