Image: Andy Worthington

Over the last few months 38 Degrees members have been campaigning to stop Clause 119 of the Care Bill, dubbed the Hospital Closure Clause. It’s currently with the House of Lords and due to be debated on Wednesday 7th May.

 It’s an important issue for many 38 Degrees members, as part of our campaign to protect our NHS. But especially because of how and why it originated in the first place. Thousands of 38 Degrees members chipped in to help the Lewisham Hospital campaign take Jeremy Hunt, Health Secretary, to court and win. A judicial review and subsequent government High Court appeal both ruled in the campaigners’ favour and against the government. Which is why Jeremy Hunt is so hell bent on changing the law.

 When the clause was before the House of Commons, 38 Degrees members swung into action alongside others to try and stop it. There was a massive petition, hospital campaign groups were mobilised into action, and we worked with Lib Dem MP and former Health Minister Paul Burstow on an amendment which aimed to remove some of the worst parts of Jeremy Hunt’s plans. It looked like we were in for a win at one point and a big Lib Dem rebellion seemed likely. But sadly, Paul Burstow withdrew the amendment. He said he thought that by pushing for a vote it would have threatened the commitments that the government had made already.

 Since then the 38 Degrees office team have been speaking to experts to decide how meaningful the government concessions were, and whether Paul Burstow was right not to push for a vote. But the government’s concessions did not go far enough. They made some movement on consulting local people, including consulting local health bosses. But lawyers said that while some of the concessions were a step forward, our hospitals still aren’t safe.

 38 Degrees members were then polled on what we should do together next. The results were unanimous. Together we voted to carry on campaigning to squeeze out as much as we could in the Lords. So following this, the President of the British Medical Association, Baroness Finlay, a well respected cross bench peer who is also a doctor, tabled amendment 43A, which we hope Peers will support. 38 Degrees members are doing lots of things to make sure they do.

 This new amendment seeks to address widespread concerns that have been raised by a variety of groups about the original clause. The amendment seeks to alter the “failure regime” when a hospital trust is in financial trouble, to ensure that the local clinical commissioning group (CCG) has an appropriate say in how solutions are arrived at. Under the Finlay amendment, where a Trust Special Administrator (“TSA”) is appointed, the TSA would treat all commissioners of NHS services equally. The present clause penalises important co-operation between commissioners and providers, and gives a veto to the struggling or indebted commissioners. This inequality is indefensible.  Why should successful commissioners, who have worked well with their local NHS trusts and NHS foundation trusts to produce a sustainable set of NHS services, be prejudiced by struggling commissioners and providers in a neighbouring area?

 The Finlay amendment removes the unfair preferential position of the commissioners of NHS services of the Trust which is in administration. The original clause only gave this right to the CCG in the narrow area of the hospital whose financial difficulties triggered the “failure regime”.

Secondly, it clarifies that if the Trust Special Administration (TSA) recommends changes at a neighbouring Trust which is not in special administration (as happened with Lewisham Hospital), the final decision-maker should be the CCG in the area affected– not the Administrators or the Government. Where the Administrator recommends that changes are made at financially and clinically successful hospitals (i.e. those not in administration), those decisions will continue to be taken by local NHS commissioners. It takes away the right of the Administrator to impose changes at hospitals other than the Trust which is in administration.

If this solution had been in place when the decision to change services at Lewisham was made, proposals to shut the maternity and A&E unit could only have proceeded with the support of Lewisham Clinical Commissioning Group.

The amendment also fills a gap around who the decision maker is. At present the decision-maker is not defined in the Bill, which leaves a legal vacuum. Clause 119 allows the Administrator to recommend changes at a successful NHS provider which is not in special administration. But - our lawyers advise - it fails to provide a mechanism to put those changes into effect.

Under the current clause, the Administrator’s recommendation would be left hanging in the air. The Administrator cannot impose his recommendations on a reluctant CCG because the Secretary of State is unable to ‘direct’ CCG commissioners on what services should be commissioned by an individual CCG and from whom. Equally the Secretary of State has never had power to issue directions to an NHS Foundation Trust. Monitor does not directly have that power.The amendment fills that gap by making it clear that the decision-maker for changes to local NHS services remains the local CCG.  

One of the principles guiding 38 Degrees is that of pragmatism. The strategic assessment, after speaking to lots of people in the know, was that we weren’t going to win outright if we were to call for the clause simply to be deleted.  Although as a community we still do campaign on things which have a small chance of success, because it’s important for 38 Degrees members to fight the good fight and because we’ve had campaign victories at the unlikeliest of moments.

Even if it was a sensible course of action, parliamentary procedure dictates that it is not possible to throw out the clause at this stage while the Bill is before the Lords in ‘ping pong’. The Lords have already voted to accept the principle of clause 118.

This amendment is not a perfect solution, but a compromise that is legally effective and delivers a fairer balance between local and national decision-making than the original clause, while also recognising that the NHS is a network and no hospital is an island.  

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