TCI Commentary:
One of the most visible challenges to NHS transformation plans failed this week when the Keep the Horton Hospital lost its case at the Court of Appeal. At issue was the consultation on the Horton Hospital, Banbury and the argument that the public had not been consulted properly on the ‘Bed Closure’ test. Judges decided that the consultation was, in fact fair and are indicating that the status of this test as being one which is for NHS England to find satisfied and not for a Court. We will need to analyse this judgment very closely so that NHS bodies nationwide understand its implications. Standby for, therefore for a more detailed commentary next week … and more debate at the next Law of Consultation courses.
Article:
Banbury campaigners have lost a High Court appeal into the lawfulness of the consultation on downgrading of the Horton.
Keep the Horton General (KTHG) heard today (Thursday) that the Court of Appeal had dismissed its case.
The claim was originally brought by Cherwell, South Northants, Stratford on Avon and Banbury Town councils and KTHG in 2017.
The coalition claimed Oxfordshire Clinical Commissioning Group (OCCG) failed to consult the public properly on plans for permanent loss of consultant-led maternity, special care baby unit, emergency gynaecology, 45 medical beds and the downgrading of intensive care.
High Court judge Mr Justice Mostyn criticised OCCG’s consultation but ruled its deficiencies did not amount to unlawfulness.
“We’re really disappointed the Court of Appeal has not found in our favour,” said KTHG chairman Keith Strangwood. “After the councils dropped out, we felt we should go ahead. Our lawyers said we had a 50-50 chance and we felt while there was a chance, we should continue the fight for the Horton catchment.
“This was always going to be a David and Goliath battle. We are a small campaign group – though we have had huge support locally and throughout the country.
“The NHS machine is the giant. It is determined to do away with district general hospitals and the CCGs are the authorities expected to do it.
“Our job was to try to ensure that the taxpayers and NHS users were given their legal right – to be in on the planning of changes, not just asked for their opinion on a done deal.
“The done deal here meant taking the heart out of the Horton.”
KTHG members say their investment in the appeal was justified, as the case was heard by the Master of the Rolls, Sir Terence Etherton (the second most senior judge in the country) and two other Law Lords, on a day when the Heathrow expansion appeal was heard under less senior judges in an adjoining court.
The 2017 consultation was an obligation of Oxfordshire Clinical Commissioning Group (OCCG) before it could finalise its downgrade plans for the Horton.
KTHG argued in court that there had been insufficient detail on proposals in a second phase of the Oxfordshire Transformation Plan (which was to have included alternatives to the 45 closed Horton beds) to allow people to make informed responses to the first part. In the Court of Appeal last month, KTHG’s lawyer, Samantha Broadfoot QC, described this as ‘putting the cart before the horse’.
Miss Broadfoot argued that OCCG had not given legally required information on the disadvantages of downgrading and had not met NHS ‘bed tests’ introduced that spring.
The test said alternative provision must be in place before beds are closed.
The second phase of the transformation plan was in fact cancelled in March 2018, a few months after the High Court judgement so consultation never happened.
The OCCG said the bed test was not a legal obligation as the guidance had been issued after the consultation had begun but it had satisfied the test’s demands with plans for alternative provision in the form of hubs, ambulatory systems and ‘acute hospital at home’.
OCCG said it had given information about the negative consequences of the hospital downgrading as well and more information had been available on its website.
Mr Strangwood said: “KTHG has been up against a huge opponent, They have limitless funds available to them from us the tax payers to fight any opposition to their plans. They have politicians to advise them. At the same time they are being directed by them and will continue to do so.
“We hope OCCG and NHS England understand KTHG is willing to go as far as it takes to ensure Banburyshire Horton Hospital users are taken seriously. This legal fight will leave them in no doubt of that.
“In the past six years they have centralised almost all the Horton’s core services to the JR in Oxford. Our purpose is to continue to fight for reinstatement of these in Banbury and urgently, our obstetric unit. “KTHG has been helping the downgrade review by Horton Health Overview and Scrutiny Committee (HHOSC) with our dossiers of women’s birth experiences and most recently gathering information on other small units in England and Wales to see how consultant-led wards are provided elsewhere.
“KTHGs amazing group of volunteers will continue to do what is required for us to Keep The Horton General.”
Article originally appeared on Branbury Guardian
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