The Queen on Application of First A v South Kent Coastal CCG
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 21 February 2020 |
| Neutral Citation | [2020] EWHC 372 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1908/2019 & CO/1926/2019 |
| Date | 21 February 2020 |
[2020] EWHC 372 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Farbey
Case No: CO/1908/2019 & CO/1926/2019
and
David Blundell & Hannah Gibbs (instructed by Leigh Day) for the First Claimant
Jenni Richards QC & Annabel Lee (instructed by Irwin Mitchell LLP) for the Second Claimant
Fenella Morris QC & Benjamin Tankel (instructed by Capsticks) for the Defendant
David Lock QC & James Neill (instructed by Medway Council) for the Second Interested Party
The first Interested Party did not appear and was not represented
Hearing dates: 3, 4 and 5 December 2019
Written submissions: 30 January 2020
Approved Judgment
Introduction
This is an application for judicial review of the decision of the defendants taken on 14 February 2019 to de-commission acute stroke services at Queen Elizabeth the Queen Mother Hospital (QEQM) in Thanet, Kent. Following a review of stroke services and a public consultation, the defendants have decided to establish three hyper-acute stroke units (HASUs) in Kent at Darent Valley Hospital, Maidstone Hospital and William Harvey Hospital respectively. The defendants have decided that the stroke unit at QEQM will not become a HASU and so it will close down.
The first claimant is a 59-year old man granted anonymity in these proceedings by order of Thornton J dated 31 May 2019. He has lived in Thanet for six years, currently residing in Westgate-on-Sea. He 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 has been told by doctors that he is at increased risk of stroke owing to a number of health conditions and lifestyle factors (for example, smoking from an early age).
The second claimant is 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. Her husband was successfully treated at QEQM for stroke in 2016. The claims are supported by SONiK. Ms Carly Jeffrey, a SONiK committee member, has provided a detailed witness statement.
The defendants are the Clinical Commissioning Groups (CCGs) responsible for commissioning healthcare services in Kent. In 2017, they formed a Joint Committee of Clinical Commissioning Groups (JCCCG) to consider how best to commission services in order to meet the needs of the people in their area for stroke treatment.
The interested parties are local authorities. The first interested party has taken no part in the proceedings. The second interested party — which represents the population in Medway in Kent — supports the claim and, like the claimants, invites the court to quash the decision. Its interest in the proceedings derives 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. As a public health authority for an area affected by the defendants' decision, the second interested party was consulted and expressed its views to the defendants on the relevant issues prior to the decision.
By order of Sir Wyn Williams sitting as a Judge of the High Court, the claim was listed for a “rolled-up” hearing in order that the application for permission to apply for judicial review and the substantive claim be heard at the same time. I heard oral submissions over the course of three days. Mr David Blundell and Ms Hannah Gibbs appeared on behalf of the first claimant. Ms Jenni Richards QC and Ms Annabel Lee appeared on behalf of the second claimant. Ms Fenella Morris QC and Mr Benjamin Tankel appeared on behalf of the defendants. Mr David Lock QC and Mr James Neill appeared on behalf of the second interested party.
Following the hearing, the Court of Appeal handed down judgment in R (Nettleship) v NHS South Tyneside CCG and anr [2020] EWCA Civ 46 which touches on similar issues. I received written notes on Nettleship on behalf of the claimants and the defendants. No party requested a further oral hearing. I am grateful to counsel for their oral and written submissions.
Factual background
Social deprivation and risk of stroke
At the heart of this case are the concerns of the claimants and the second interested party about health inequalities for socially deprived people living in Thanet. I have received competing evidence about social deprivation in Thanet including a detailed witness statement from Dr David Whiting who is employed by the second interested party as a public health consultant. He gives evidence on the distribution of areas of deprivation within Kent and the relationship between deprivation and stroke incidence, challenging the defendants' analysis. Subject to limited exceptions which do not apply here, it is not the function of the court to make findings of fact in judicial review proceedings. In terms of what is relevant and material to the issues of law which I must decide, the following analysis suffices.
According to information published by Public Health England, Thanet is one of the 20% most deprived areas in England. The Indices of Deprivation 2015 show that it continued to rank as the most deprived part of Kent. There is a connection between social deprivation and poor health. Life expectancy for both men and women in Thanet is lower than the average in England. There is evidence before me, however, that Thanet is not the only deprived area in Kent. There are other pockets of deprivation in urban, coastal and estuarial areas.
In general, people from more deprived areas have an increased risk of stroke. People from the most economically deprived areas of the United Kingdom are around twice as likely to have a stroke and are three times more likely to die from a stroke than those from the least deprived areas. A number of lifestyle factors in deprived communities (such as obesity, physical inactivity and an unhealthy diet) contribute to that increased risk. Priorities in Thanet include reducing early death from a number of causes including stroke.
Access to emergency treatment for stroke
Thanet lies on the north-eastern edge of Kent. If the stroke unit at QEQM closes, stroke sufferers who live in Thanet will have to travel further to be treated for stroke. Their families and carers will have to travel further in order to visit them. The claimants and second interested party are concerned that the burden of increased journey times will be borne by a group of people more likely than others to suffer stroke and (save for patients conveyed by ambulance) less able to afford the travel costs.
It is not in dispute that stroke patients need timely treatment. The defendants' evidence shows that recovery from a stroke is significantly influenced by:
i. Seeing a stroke consultant within 24 hours;
ii. Having a brain scan within 1 hour of arriving at a hospital;
iii. Being seen by a stroke-trained nurse and one therapist within 72 hours of admission; and
iv. Being admitted to a dedicated stroke unit.
As at April 2017, the Royal College of Physicians assessed that around 80% of people having a stroke in England arrived at hospital by ambulance. National, non-mandatory guidelines from NICE (1 May 2019) recommend the admission of everyone suspected of stroke “directly to a specialist stroke unit” and the administration of emergency thrombolysis (clot-busting treatment for which around 20% of patients are eligible) if “treatment is started as soon as possible within 4.5 hours of onset of stroke symptoms”.
The Royal College of Physicians National Clinical Guideline for Stroke (2016) contains recommended clot-busting treatment times:
i. Patients with acute ischaemic stroke, regardless of age or stroke severity, in whom thrombolytic treatment can be started within 3 hours of known onset should be considered for such treatment.
ii. Patients with acute ischaemic stroke under the age of 80 years in whom thrombolytic treatment can be started between 3 and 4.5 hours of known onset should be considered for it.
iii. Patients with acute ischaemic stroke over 80 years in whom thrombolytic treatment can be started between 3 and 4.5 hours of known onset should be considered for it on an individual basis. In doing so, treating clinicians should recognise that the benefits of treatment are smaller than if treated earlier, but that the risks of a worse outcome, including death, will on average not be increased.
Local written standards in Kent stipulate that the care of people with suspected stroke should aim to minimise time between a call to emergency services and the administration of thrombolysis, for the proportion of patients who need it. This “call to needle” time should be less than 120 minutes. In practical terms, this means:
i. The time from a 999 call to the ambulance service to bringing a patient to the hospital door should be as short as possible and less than 60 minutes; and
ii. The time from arrival at the hospital door to thrombolysis should be as short as possible and less than 60 minutes.
The defendants have since at least July 2015 regarded both these 60-minute targets as “key clinical targets”. Current standards of best practice indicate that, in cases where clot busting treatment is...
To continue reading
Request your trial
-
The King on the application of PM v Secretary of State for the Home Department
...is being withdrawn, there will usually be an obligation to consult beneficiaries before withdrawal: R (A) v South Kent Coastal CCG [2020] EWHC 372 (Admin), [57], citing R (LH) v Shropshire Council [2014] EWCA Civ 404, [21]. She contends this case falls within the fourth category identifie......
-
Caribbean Cellular Telephone Ltd v Bvi Cable TV Ltd
...[2014] 1 WLR 3947 R (Nettleship) v NHS South Tyneside Clinical Commissioning Group [2020] EWCA Civ 46 R (A) v South Kent Coastal CCG [2020] EWHC 372 R v (on the Application of Moseley) v Haringey London Borough Council 2014 UKSC 56 R v Lord President of the Privy Council ex parte Page [199......
-
The Queen (on the application of Jayne Dawson) v United Lincolnshire Hospitals NHS Trust
...EWHC 2334. Ms Morris did not dispute that the duty is an important one but, relying on R (A) v South Kent Coastal CCG & Others [2020] EWHC 372 (Admin) at [74]–[75], she argued that it is one of a “suite of high level duties” which may impose competing demands on decision makers within the ......
-
Anjna Khurana v North Central London Clinical Commissioning Group
...EWHC 1698 (Admin), 21 CCL Rep 446, per Green J (as he then was), at [94]. 70 In R (A and others) v South Kent Coastal CCG and others [2020] EWHC 372 (Admin) at [75] Farbey J observed that the number of different duties in the 2006 Act relate to a “wide range of factors, reflecting the comp......