Today at the High Court, Mr Justice Silber ruled that the Coalition Government’s attempt to reduce services offered by Lewisham Hospital were illegal. This was the culmination of a challenge by Lewisham Council and by the Save Lewisham Hospital Campaign against a decision by Secretary of State for Health, Jeremy Hunt, to (mostly) accept the recommendations by Trust Special Administrator (TSA) Mathew Kershaw to solve the problems in the South London Healthcare Trust (SLHT). One of these solutions involved the downgrading of services of Lewisham Hospital ( a hospital in a neighbouring – non failing – Trust). It was decision that caused me and my fellow Lewisham resident to take to the streets. How, we asked, could it be right that a nn failing Hospital, with high rated services – was going to have to sacrifice those the bail out a failing Hospital in another borough?
It was a clinical decision we were told, taken with the support of healthcare providers. This was, of course, rubbish.
The idea of a TSA comes from the Health Act 2009, which amends the NHS Act 2006, to allow the government, in exceptional circumstances, to deal with failing NHS organisations. Kershaw was told to sort out SLHT. HIs solution was to look more widely and include the neighbouring Trust and make recommendations based on what was best for the whole area. In theory, nothing wrong with that. Only, as the court confirmed the Powers of the TSA and the Secretary of State under the amended 2006 Act, do not allow them to make decisions about services in other Trusts. They only give them legal powers to make decision regarding the Trust the TSA is appointed to.
The Government tried to argue that, because Lewisham Council and Save Lewisham agreed that the TSA could suggest that the failing Hospitals were taken over by those in Lewisham Healthcare Trust, that this undermined their argument over the TSA having powers to make recommendations in that second Trust. Not so, said the Court. There is a world of difference between suggesting another hospital takes over a failing hospital, and recommending that the hospital that is the member of that second trust lose services.
The crux of this case came down to how the words “in relation to the Trust” should be construed. The Govt argued that they must be construed widely, as it would be absurd to think the serious problems at SLHT could be resolved without looking at the wider ‘local’ picture., and that the TSA was making recommendations in the interest of the heath service as a whole.
Justice Silber disagreed. He said it was clear that “in relation to the Trust”, meant exactly that THE TRUST, singular. He pointed out that the 2006 Act contains the phrase “In relation to” 243 times. He states it is clear they mean concerning when used elsewhere in the Act, so to rule they mean otherwise here would not be right. He also points out that nowhere in the Act does it grant the Secretary of State any consequential powers to make an order under the act relating to hospitals in other Trusts that may be affected by any TSA recommendations.
So, essentially, what the Court is saying is that Lewisham Hospital has been ‘saved’ by badly drafted legislation.
The Govt of course is going to appeal. Having read the judgment, I don’t see them having a great deal of hope of overturning this ruling on the legality of the remit of the TSA and therefore the Secretary of State’s agreement to changes that feel outside that remit.
Today was a day to celebrate ( doubly so for my Partner who works for Lewisham Hospital) , although the problems facing Lewisham and other Hospitals are not going away any time soon. Some Hospitals will close. There may even be good clinical reasons for doing so. But, saddled with PFI debts and having services sold off to private providers, our hospitals are under attack. The slow, drip drip drip of NHS failures, Bad Nurses, Killer ‘pathways’ and stories about the horrendous cost of the NHS are blinding people the fact that the service is still one of best value for money services in the world – this, my friends, is why all these private healthcare companies want in, not because it is failing.
I’d love to tell you it is all just the Tories fault, but Labour have blood on their hands too over the PFI deals and of pushing the quiet privatisation of the NHS with the promise of ‘choice’ and ‘competition’. There already was a choice – use the NHS or go private.