Lewisham Hospital – Key messages from the judicial review

London has witnessed a great deal of controversy in recent months as the Government sought to resolve long-standing financial and associated problems in the NHS in South London. A year ago, it appointed a Trust Special Administrator in an attempt to resolve the issues, but his recommendations sparked off an acrimonious campaign which finally led to a judicial review. On 31st July, the High Court found in favour of the LB of Lewisham and the Save Lewisham Hospital campaign, and this Briefing Note seeks to outline those aspects of the judgment that may be of interest to Institute members.

The case turned on the legality of using a special procedure introduced in the 2009 Health Act and called the Unsustainable Provider Regime. This enabled the Health Secretary to appoint a Special Administrator to take over a failing Trust and propose solutions to its problems. This is the first time the process has been invoked and the real dispute was whether the Administrator can propose (and the Secretary of State subsequently agree) to remove services from a Hospital run by a neighbouring Trust. In the event, the Judge decided that – on the words used in the statute - neither the Administrator nor the Government Minister had the power they had assumed. But the case discussed many aspects of the process that affect the NHS and local authorities as cherished services are reorganised in England. These include:-

• Reinforcing the requirements to consult and engage under normal circumstances. The Judge asserts that the fast-track process (our words!) has to be exceptional.

“Those drafting the Chapter 5A regime had to decide in what circumstances the usual rights of an individual to be consulted should be greatly reduced ...”

• The Department of Health had argued that it was impractical to improve the situation in one Hospital Trust without affecting neighbouring facilities. It therefore wanted a ‘wide interpretation’ for the Administrator’s brief. The Court disagreed and accepted the campaigners’ case that this would have given the NHS a way to by-pass the normal consultation required if changes to Lewisham had been conventionally developed and proposed.
• The claimants argued that the Government’s decision failed to meet the four “Lansley Tests’ introduced by the Coalition. The Judge however claimed that, because he had ruled that the Administrator lacked the power to propose changes to Lewisham, the question shouldn’t arise. But – in case he was wrong on this point, and because Ministers had insisted that the tests were met re Lewisham - he then discussed the merits of the arguments on the ‘four tests’.
• – The tests for ‘Strengthened public & patient engagement’, ‘Clarity on the clinical evidence base’ and ‘Consistency with patient choice’ had all been met.
• – The test called ‘Support from GP Commissioners’ had not been met. It depended upon whether one looked at the views of GPs from the Lewisham CCG, where most patients would be affected, or whether the Government could rely upon the views of a much wider area of South London where GPs were less opposed to the plans. The Judge was clear that the test was meant to apply only to GPs in the area most affected ie Lewisham
• There was discussion of whether or not there should have been a further consultation. Following receipt of the Administrator’s Final Report, the Secretary of State had asked the NHS Medical Director to review the findings and this led to a modification of the proposals. Part of the campaigners’ case was that the new modified proposals had not been adequately consulted upon and they demanded a re-consultation. The Judge sidestepped the issue because he had ruled the proposal unlawful anyway. But his comments suggest that had the changes been adverse (they in fact were helpful) to the campaigners – that they might have succeeded on this point.
• The Government tried to argue that they could implement the changes without having to rely on the fast-track process. This was rejected as they would then have had to go through the more comprehensive consultation process, and in particular the relevant Overview & Scrutiny Committees would have had a stronger voice. In the Lewisham case, there was evidence that the Administrator engaged rather more perfunctorily with Councillors than would have otherwise been the case.

The Institute View

• Although this is case turns on the specific statutory provisions established for the NHS, it raises important issues whenever public bodies try to expedite consultation on cherished public services.
• Evidence shows that successful consultation requires identifiable stakeholders with whom to hold meaningful dialogues on a relevant subject. If it is to be done in a hurry, the ‘narrower’ the agenda, the better. The new Cabinet Office Principles means we will have more short-timescale consultations – so this will affect many public bodies
• In Lewisham, a quicker process than normal was conducted on a ‘wider’ agenda than normal. Instead of confining proposals to the Trust for which he was appointed, the Administrator proposed to changes to neighbouring Trusts and was almost guaranteed to fail to consult/engage properly

Further insights

• The Case itself is R (ex parte LB of Lewisham & Save Lewisham Hospital) v Secretary of State for Health [2013] EWHC 2329 (Admin)· This Briefing was written by Rhion Jones, Programme Director of the Institute, and who may be available for discussion. Telephone the Institute Centre of Excellence in Biggleswade on 01767 318350
• Issues arising from the case itself are covered in the Institute’s Law of Consultation training course, jointly presented by Rhion Jones and Rosa Curling of Leigh Day, who was deeply involved in the Lewisham case. The course is next being delivered on September 10th in London, 6th November in Birmingham and 11th December in Bristol.
• Lessons from the Lewisham Report are being incorporated into the Institute Masterclass: Managing significant change in Health & Social Care, which will next be run on 2nd October in Birmingham
• NHS Managers or local authorities involved in NHS re-organisations might like to consider the Institute’s Quality Assured Consultations (QuAC) programme where a thorough Compliance Assessment process is used to help organisations deliver a best practice engagement exercise.

Briefing Notes are published by the Institute in good faith as a member benefit, but the information provided cannot be relied upon as constituting advice giving rise to any legal or other liability whether express or implied.

This is the 11th Briefing Note; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement