Last chance to address the hospital closure clause

The hospital closure clause returns for its final stages in the Lords on 7 May. Lord Phil Hunt writes here about the safeguards he is trying to introduce by amendment.

Philip Hunt
29 April 2014
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Image: Andy Worthington

A last gasp attempt will be made to restrain the Government’s plans to fast track hospital closures when the Care Bill returns for its final stages in the House of Lords on 7 May.

The infamous Clause 118 of the Bill re-writes the rules on hospital closures. It means no hospital is safe from being decimated to shore up neighbouring hospitals in danger of collapse for financial reasons.

The Government introduced the Clause after it failed in its attempt to close large parts of Lewisham Hospital in response to mounting financial problems at the South London Healthcare Trust.

Forecasting an accumulated deficit of £196 million by 2016/2017, a Trust Special Administrator appointed by the Health Secretary had recommended that Lewisham Hospital should have its A & E department downgraded and lose other key services as well.

There was outrage locally. Lewisham was not a part of the South London Healthcare Trust. Instead, it was a well-run and popular Trust pitchforked into helping solve a problem not of its making. Closing large parts of it would have had devastating consequences for the future status and viability of Lewisham Hospital and on the people who use the hospital.

Lewisham Council and the fantastically energetic campaign group took the fight to the High Court. The Judge ruled in their favour, finding that neither the Trust Special Administrator nor the Secretary of State was entitled use the fast-track Administration process to cut services at Lewisham Hospital, because it was in a totally different trust to the one in administration.

Importantly the Judge also concluded that Lewisham GP Commissioners had not given support to the proposals. This constituted an additional reason why the decision of the Secretary of State could not stand. The Government subsequently lost its appeal but instead of taking the lesson to heart, rushed through an amendment to give it unprecedented power to force service closures.

The original legislation was intended to deal with a simple case where a trust had “failed” and its assets were being transferred or sold off. It is not suited to major hospital re-configuration and should not be a backdoor way of achieving unpopular changes.

It’s true that an NHS Trust does not ‘fail’ in isolation – it is part of a complex interconnected system. Change one bit and you impact on a whole system. But by short circuiting local consultation we are likely to end up with no real ownership of any changes.

Belatedly the Government amended the Bill in the Commons to require the Trust Special Administrator to consult more widely if his recommendations affect other Trusts. But this does not change the essential powers of the Health Secretary to push closures through.

After a fierce debate in Commons the Government agreed to set up a committee to produce guidelines on the Trust Special Administration process, to be chaired by Paul Burstow MP.

But the guidelines will have no force nor be subject to parliamentary scrutiny. There will be no requirement on Ministers or anyone else to follow them.

That is why I am moving an amendment on 7 May to give Parliament the final say on the guidelines.

I am following the precedent set by the 1983 Mental Health Act which gives Parliament a veto over the Code of Practice which provides guidance to professionals who undertakes duties under the Act. Since this covers crucial issues over consent to treatment, the detention of patients and supervised community treatment, Parliamentary approval is essential.

The guidelines on hospital closures should be subject to the same scrutiny.

If my amendment is passed, whilst it would not impose a legal duty to comply with the code, decision makers must have regard to it. That means that if departures from the Code gave rise to legal challenge, a court will scrutinise the reasons for the departure, to ensure that there is sufficiently convincing justification in the circumstances.

This would be a powerful safeguard against the arbitrary use of power by Ministers. There should be no problem with service changes based on clinical evidence. But the decimation of services on financial grounds alone must be resisted. The Lords has one last chance to speak up for patients and their communities in the Care Bill. Let’s hope they take it.

Editors note - Separately, 38 Degrees are pursuing a separate amendment to the closing stages of the Hospital Closure Clause, working with Baronness Finlay. Details are here.

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