Royal Brompton wins first ever JR by one NHS body of decision of another

The first-ever judicial review challenge in the High Court brought by one NHS organisation against another has succeeded.

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

The consultation had recommended to the Joint Committee of Primary Care Trusts (JCPCT), the relevant decision-making body, that Great Ormond Street Hospital and Evelina Children’s Hospital be chosen as the two children’s heart surgery centres in London.

But, in a judgment published today, Mr Justice Owen ruled that the consultation was unlawful and should be quashed.

He rejected the vast majority of RBHT’s complaints, including that:

• the determination to have two rather than three London centres providing paediatric congenital cardiac services had been taken prior to the consultation exercise, as far back as 2010
• the Joint Committee had acted irrationally in excluding three London centres from the preferred options in the consultation and in excluding the Royal Brompton from the two London centre options
• the consultation was fundamentally flawed and had misled the public
• the consultation process was vitiated by bias, or by the appearance of bias was rejected as well.

However, Mr Justice Owen concluded that the consultation process was unfair to the trust in the way that its capacity for research and innovation was assessed.

The judge said the unfairness was “of such a magnitude as to lead to the conclusion that the process went radically wrong”. It had also led to the distortion of the consultation, he added.

A ‘configuration evaluation’ that had been conducted as part of the consultation exercise had given RBHT a low score for research and innovation, but this rating was based on information provided for a separate exercise.

No request for specific information on the trust’s paediatric cardiac research programme had ever been requested.

Mr Justice Owen said: “Those responding to the Consultation Document would inevitably have proceeded on the premise that the RBHT’s capacity for research and innovation was poor.”

Reacting to the ruling, RBHT’s chief executive, Bob Bell, said: “It would have been so much easier to simply accept the plans of the Joint Committee of PCTs back in February, but we felt the stakes were simply too high. We could not sit back and watch while flawed plans to dismantle our specialist children’s services at Royal Brompton were drawn up by bureaucrats, plans which we knew would have a harmful effect on patient care.

“The real tragedy is that the judicial review could and should have been avoided. It was obvious to us from the outset that there were errors in the Safe & Sustainable process and we made Sir Neil McKay, chair of the Joint Committee of Primary Care Trusts, aware of our concerns. His refusal to consider these issues left legal challenge the only option open to us. This was highly regrettable, a decision of last resort.”

Bell said the position of RBHT remained that the number of paediatric cardiac surgery patients in London and the South East warranted a paediatric network system, comprising the three current outstanding centres. Each offered a different but complementary model of care, he argued.

Sir Neil said he was “disappointed that Mr Justice Owen decided to quash the consultation on an obscure technical point that had no material bearing on the JCPCT’s choice of consultation options”.

He welcomed the judge’s dismissal of all but one of RBHT’s claims and added: “We respectfully intend to appeal the judge’s decision based on his misunderstanding of the review process.”

On the score for research and innovation, Sir Neil said: “It is particularly disappointing that the judge upheld this claim as he conceded that the sub-score for ‘research and innovation’ had no material bearing on the JCPCT’s choice of consultation options.

“The judge acknowledged that even had RBHT been awarded the maximum possible sub-score for ‘research and innovation’ it would not have altered the JCPCT’s preference for Great Ormond Street Hospital and Evelina Children’s Hospital as these two hospitals would have still scored higher than RBHT against the other criteria."

Sir Neil said the work of the Joint Committee would continue and that a final decision on the future configuration of services would be made in the Spring of 2012.