Council wins High Court battle over cuts to services at local hospital

Lewisham Council has hailed a High Court ruling that the Health Secretary acted unlawfully when he approved a reduction in the services offered at a hospital in the borough.

The local authority and campaign group Save Lewisham Hospital had sought to quash a recommendation of a Trust Special Administrator and – following a review by the NHS Medical Director – a subsequent decision of Jeremy Hunt on 31 January 2013 backing the measures.

If implemented, the changes would have cut maternity and A&E services at Lewisham University Hospital.

At issue in the case was what happened on the first occasion that the ‘Unsustainable Providers Regime’ (UPR) had been used.

South London Healthcare Trust – which covers three hospitals but not the Lewisham hospital (part of Lewisham Healthcare Trust) – was a badly performing trust, reporting a £65m deficit for the 12 months to March 2012. An accumulated deficit of £196m was forecast for the five years to 2016/17.

A Trust Special Administrator, Matthew Kershaw, was appointed to take control of SLHT from the trust’s chair and board directors.

The administrator made recommendations under the UPR. In particular he said Lewisham University Hospital should:

• no longer provide emergency care for critically ill patients who did not need to be admitted to hospital;
• lose its obstetrician-led maternity unit; and
• acquire an elective centre for non-complex inpatient procedures such as hip implants.

Recommendations to dissolve the SHLT and for one of its hospitals, Queen Mary’s, to become part of Lewisham Healthcare Trust were not challenged.

In the High Court today (31 July) Mr Justice Silber sided with the claimants, who had argued that the TSA and the Health Secretary were only entitled to make recommendations and a decision “in relation to the Trust” under Chapter 5 A of Part 2 of the National Health Services Act 2006.

The council and the campaign group insisted that this meant services offered by Lewisham Hospital – being part of a different trust – could not be the subject of the administrator’s recommendations or the Secretary of State’s decision. The TSA and Hunt meanwhile argued that they had the necessary authority.

The judge concluded that the administration’s recommendations and the Health Secretary’s decision should be quashed.

He said he would also have quashed them because of an absence of support from local GP commissioners. “It was quite clear that the Lewisham GP Commissioners did not give support to the proposals; on the contrary, they strongly opposed them although those GP Commissioners in a number of surrounding but different areas were happy with them,” Mr Justice Silber explained.

Mr Justice Silber gave the Secretary of State and the TSA permission to appeal, “bearing in mind that this was the first occasion in which the TSA regime has been considered by the courts”.

Responding to the judgment, the Mayor of Lewisham, Sir Steve Bullock, said: “Justice has been delivered. I am delighted for the thousands of people in Lewisham who fought so hard to have their voices heard and applaud all those who dared to hope and believe that together we could make a difference. This is a real victory for Lewisham residents, for Londoners and everyone who remains committed to our National Health Service.

“Lewisham Hospital is well-managed, highly-respected and financially solvent. The Special Administrator should never have been allowed to make recommendations outside his remit, the Secretary of State should never have adopted his recommendations and this case should never have had to come to the High Court.”

Rosa Curling from law firm Leigh Day, who represented the Save Lewisham Hospital Group, said: “When the Secretary of State appointed the Trust Special Administrator to investigate and develop recommendations on the future of South London Healthcare NHS Trust, he promised that there would be no ‘back-door approach to reconfiguration’; there would be no reconfiguration of neighbouring NHS services delivered by other NHS bodies beyond the South London Trust.

“He broke this promise - in fact, his decision regarding South London included a substantial reconfiguration of services delivered by other NHS bodies beyond South London and in particular in relation to Lewisham Hospital. The court has today agreed that the TSA and the Secretary of State has no legal power to do this and has emphatically made clear that this decision should be quashed.”