Questioning the expert - What can we deduce from the Leeds Infirmary row?

Very few news stories have caught the imagination – and prompted such a confused response as last week’s astonishing developments over the cardiac surgery unit at the Leeds Infirmary. Successive waves of revelations have served to muddy the waters, and it will be a brave person who can predict how it will all unfold.

But we already know enough to speculate that this case will have considerable implications for the law and practice of public consultations – and the purpose of this Topic is to try to explain why.

Here is what is known and beyond dispute:- • In 2010 there was a very comprehensive consultation on the rationalisation of children’s cardiac surgery in England. • A key part of this was to consider the relative merits of the current locations where surgery is undertaken, and following expert advice, it offered a range of configuration options for the future pattern if facilities • The Royal Brompton Hospital challenged this consultation but was firmly told by the Court of Appeal that the exercise had been lawful because consultees had the opportunity to propose additional solutions • The Leeds Infirmary then went to judicial review using a different argument. Its case was that an expert panel had arrived at its conclusions using ‘sub-scores’ that were not revealed either to the decision-makers or to the public at large. • Leeds won its case and last Wednesday, the Judge quashed the relevant part of the consultation.

It was then that a strange development occurred. The NHS Chief Medical Officer persuaded the Hospital Trust to suspend surgery at Leeds. He did so for a ‘constellation of reasons’ which included information volunteered by surgeon-whistleblowers and newly-available mortality data that caused him serious concern. In the wake of Mid-Staffs he seems to have had little choice. However, the data was immediately challenged with seemingly-credible clinicians disputing the validity and propriety of the information relied upon by the NHS.

Of course it sounds an unholy mess, but there are some important principles at stake.

Fundamentally, there is nothing wrong with having an argument about which facility should stay open and which might have to close. Difficult decisions like this have to be taken, and not just in the NHS. Rationalising libraries, care homes, police stations, fire stations or job centres is unfortunately on the agenda in many places, and someone has to decide. Fortunately we have got into the practice of subjecting these to a consultative process – listening to the views of stakeholders before decisions are actually taken. So far so good.

But what happens when the evidence base is uncertain ... or disputed? Let’s be fair, this is what has happened in Leeds. Campaigners in support of the Leeds Infirmary argue that there was something inherently flaky about the data used by the expert panel. They also mistrust the motives of those who argued in favour of other Hospitals. No wonder they view last Thursday’s suspension of operations with such suspicion.

In short, what we have here is the aftermath of a consultation where too much of the evidence base was disputed. Exactly the same happened over the High Speed Two consultation – which also ended up in the High Court.

So what is the solution? One way is to try hard to agree the facts beforehand. It will not always be possible, but on too many occasions, it is not even attempted. Pre-consultation best practice should include a mandatory stage in the process where stakeholders are brought together to consider the criteria that might be relevant, and the data that needs to be gathered. Suddenly uncovering last-minute after-the-event data is always going to look and feel wrong - far better to agree what’s needed at the outset.

In theory, this actually happened in the NHS children’s cardiac surgery case. But the membership of the expert panel and its methods never commanded sufficient support. The problem highlighted in this case is not that experts were not involved. It was the lack of transparency that led one group of people to dispute the bona fides of another ... not the lack of data.

Expert panels can be found in many situations – not just in Health, and their argument is usually, Why ask for our expert advice if you’re going to second-guess us? In the Leeds case, the Expert Panel Chairman actually advised the decision-makers not to ask to see their work “in case it would be challenged in the Courts!”

But that attitude won’t survive the level of transparency that modern public consultation requires. Specialist advisers, assessors - or whatever they’re called - have to be prepared for scrutiny and cannot just hide behind their expert status. For them, this may be a game-changer

Trigger Points

• Does your organisation rely on expert panels or equivalent to recommend options or otherwise gather information in preparation for a consultation?
• If so, should you re-examine their terms of reference and the requirements to explain their methods?
• What attempts do you make to agree disputed facts with key stakeholders at the pre-consultation stage?
• The Leeds Infirmary judgment can be read here. n.b. don't be put off by the heading referring to Newcastle upon Tyne.
• The Leeds case – and others relevant to this Topic will be discussed in detail at forthcoming courses on the Law of Consultation – for further details, dates and venues, please click here

This is the 233rd Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement