NHS trust loses in Court of Appeal over proposed closure of children's heart surgery centre

The Court of Appeal has overturned a High Court ruling that upheld the first-ever judicial review challenge brought by one NHS organisation against another.

The Royal Brompton & Harefield NHS Foundation Trust had taken legal action over the outcome of the Safe and Sustainable consultation on the future of children’s heart surgery.

The outcome of the consultation was a recommendation that the Joint Committee of Primary Care Trusts (JCPCT) choose Great Ormond Street Hospital and Evelina Children’s Hospital as the two children’s heart surgery centres in London.

Mr Justice Owen ruled in November 2011 that the consultation was unlawful and should be quashed.

The judge had rejected the majority of the Royal Brompton’s complaints but he concluded that the consultation process was unfair to the trust in the way that its capacity for research and innovation was assessed.

But the JCPCT took the case to the Court of Appeal and won. The Court also rejected the Royal Brompton’s claim that additional grounds – such as alleged bias – justified the original decision to quash the consultation.

Sir Neil McKay, Chairman of the JCPCT, said: “Three Court of Appeal judges have found the JCPCT's process for public consultation to be fair, lawful and proper, and they have dismissed all of the grounds raised by the Royal Brompton Hospital.

“Today's judgment will be welcomed by specialist heart doctors and nurses, national children's charities and the families of children with congenital heart disease who have consistently called for an even safer and more sustainable children's heart service in England.”

He added that the ruling meant the JCPCT could now take into account the evidence submitted to it as part of the biggest public consultation ever undertaken by the NHS. “It is only right that all of these voices can be heard,” Sir Neil said.

The JCPCT chairman added that the court action had “delayed an open and honest process of consultation and has been frustrating to many of us, including Royal Colleges and professional associations who have said that change to children's heart services is long overdue”.

Sir Neil welcomed the Court of Appeal's recognition that the process of public consultation – rather than costly litigation – was the most appropriate way for public bodies to express their views on proposed changes. “I hope that this dissuades NHS bodies from pursuing this unnecessary course of action in the future,” he argued.

In a statement the Royal Brompton expressed disappointment that the issue had divided the judiciary and that Mr Justice Owen’s judgment had not been upheld. It added that it had not challenged the fact that the JCPCT had an open mind, and that it would now see what the decision was.

The Royal Brompton said: “The Trust took this legal action on behalf of patients and their families. It was action of the last resort and taken with a heavy heart, after a number of attempts to settle the matter at an earlier stage failed.

“But it was taken because we remain convinced that there is a vital role for specialist cardiac and respiratory care for children and older patients to be fully integrated in a specialist Trust such as ours, which works with the significant research power of our partner Imperial College. We remain convinced that our highly respected services for patients in England and Wales will be harmed if our unit is dismantled as a consequence of the Safe and Sustainable process to date. We believe that the JCPCT’s recommended four options – none of which includes Royal Brompton – distorted the consultation process.”

The Trust added that it believed that the proposals were formulated without any real understanding of the effect that they would have on services for these children when they grew up and needed clinical support and further surgery.

“It is also clear that the proposal was put forward with no real consideration of the effect on our world-leading respiratory centre,” it claimed.

The Royal Brompton said it regretted that resources had to be diverted to the legal case. “But when serious assaults are made on patient care, when internationally acclaimed clinical teams are effectively put on notice, when groundbreaking research teams who may be on the cusp of a significant breakthrough in cystic fibrosis tell us their research will not be possible under the Safe and Sustainable proposals, then drastic measures are called for,” it insisted.