Claimants lose challenge to reconfiguration of stroke services in Kent and closure of unit

Campaigners backed by Medway Council have failed in a judicial review challenge to the proposed closure of a stroke unit at a local hospital in Kent.

The case of A & Anor, R (On the Application Of) v South Kent Coastal CCG & Ors [2020] EWHC 372 concerned the decision of the defendant clinical commissioning groups (CCGs) to de-commission acute stroke services at Queen Elizabeth the Queen Mother Hospital (QEQM) in Thanet.

Following a review of stroke services and a public consultation, the defendants decided to establish three hyper-acute stroke units (HASUs) in Kent at Darent Valley Hospital, Maidstone Hospital and William Harvey Hospital respectively. Under the plans the stroke unit at QEQM will not become a HASU and so will close.

The first claimant was a 59-year old man who has lived in Thanet for six years and is a committee member of Save our NHS in Kent (SONiK) which has campaigned against the closure of the QEQM stroke unit. He was diagnosed with autism and Generalised Seizure Disorder three years ago. He was told by doctors that he is at increased risk of stroke owing to a number of health conditions and lifestyle factors.

The second claimant was a life-long resident of Ramsgate in Thanet. She has complex health needs and is at high risk of suffering a stroke. She regularly attends QEQM for hospital appointments.

Medway Council supported the claim and, like the claimants, invited the court to quash the decision. Its interest in the proceedings derived from its public health functions and duties under section 2B of the National Health Service Act 2006 which requires it to take such steps as it considers appropriate for improving the health of the people in its area.

The claimants advanced eight different grounds of challenge, including that:

• The defendant CCGs misunderstood or failed to discharge the health inequality duty under section 14T of the National Health Service Act 2006 (Ground 1). The defendants' decision to close the QEQM stroke unit meant that the most deprived areas to the east of Kent including Thanet would experience an increase in travel times to hospital by ambulance. Only 81.3% of those from the most deprived quintile of the population would be able to access stroke services within 45 minutes compared to 92.4% of the general population. Of Thanet's population, 17% would not be able to access a HASU in 60 minutes.
• The defendants failed to consider and failed to make sufficient inquiries into whether and how stroke prevention measures could mitigate the effects of the decision to remove stroke services from QEQM (Ground 2). The grounds for judicial review contended that: "Given how critical prevention was deemed to be to the decision, it was irrational for the [defendants] to proceed to [a] final decision without adequately considering and making sufficient inquiry into the matter of prevention".
• The CCGs' consultation was unlawful (Ground 5). It breached the common law duty of consultation and/or section 14Z2 of the 2006 Act.
• The defendants failed to have due regard to the PSED under section 149 of the Equality Act 2010 (Ground 6).

Mrs Justice Farbey gave permission to apply for judicial review on grounds 1 and 5 but dismissed the claim.

Welcoming the judgment, Rachel Jones, Senior Responsible Officer for the Stroke Review, said: “We are extremely pleased that the judge’s ruling means that we can improve stroke care and outcomes for local people.

“Our review of urgent stroke services, which started back in late 2014, has always been about providing the highest quality stroke care for patients and certainty for our hard-working staff.

“Evidence from other parts of the country, and from around the world, shows that this new way of providing stroke care reduces death and disability from stroke. Our focus now will be on implementing the new stroke units as soon as possible so we can deliver much-needed improvements.”

Jones added: “We understand the claimants will be disappointed by this outcome and we are committed to continuing to work with local communities where there are concerns about the impact of the changes.”

The CCGs said the NHS was awaiting the outcome of the referral to the Secretary of State and the subsequent Independent Reconfiguration Panel review of the stroke programme, which they hoped to receive in the near future. “Until then, the NHS will work on developing a timeline for implementing the new hyper acute stroke units and will publish further information on likely go-live dates for the HASUs as soon as possible after the outcome of the Secretary of State referral is known.”

SONiK said on Twitter: “We are devastated for Thanet and for Kent’s NHS services as a whole, but the fight goes on – SONiK aren’t giving up.”