The Queen (on the application of and Others v Secretary of State for Health and Another Lewisham Healthcare Nhs Trust and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber: |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWHC 2381 (Admin) |
| Date | 31 July 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2744/2012 |
[2013] EWHC 2381 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Silber
Case No: CO/2744/2012
CO/2930/2013
Elisabeth Laing QC (instructed by Lewisham Council) for the First Claimant
David Lock QC and Jeremy Hyam (instructed by Leigh Day) for the Second Claimant
Rory Phillips QC and Ivan Hare (instructed by Treasury Solicitor) for the Defendants
The Interested Parties were not represented
Introduction
There are few issues which prompt such vociferous protest as attempts to reduce the services at a hospital which is highly regarded and which is much used by those who live in its neighbourhood. One such hospital is University Hospital Lewisham ("LH"). The present applications for judicial review relate to first a recommendation to reduce the services at LH made by the Trust Special Administrator ("TSA"), and second to a subsequent decision made by the Secretary of State for Health ("the Secretary of State") to also reduce the services offered at that hospital but in a different way.
There are specified and detailed procedures for reconfiguring services offered by a hospital which aim to ensure that the procedures are fair and that they satisfy the requirements for adequate consultation. The most recent arrangements were introduced by the Coalition in 2010, and they require detailed consultation with many interested parties. Therefore by their nature, these arrangements are lengthy and very time-consuming. The evidence was that the normal process of consultation involved in the conventional application to reconfigure health service " could take up to two years to reach a decision [and] in some circumstances it could take even longer" (page 204 of TSA's final report).
There are also procedures available to improve the performance of NHS organisations so as to ensure that they provide adequate quality of care within sustainable resources, but on occasions it has proven impossible to improve speedily the performance of a failing NHS organisation sufficiently to secure an adequate quality of care for its patients within sustainable resources. For that reason, an exceptional bespoke procedure was introduced to deal with situations which arise, in the words of a senior official of the Department of Health, Dr. Shaleel Kesevan, " where very occasionally it proves impossible to improve the performance of an NHS organisation sufficiently to secure adequate quality of care within sustainable resources". This regime is entitled the "Unsustainable Providers Regime" ("the UPR"), which as its name shows was intended to deal with failing NHS organisations.
This UPR regime entails the appointment of a TSA to run, among other entities, an NHS trust. It was introduced by the Health Act 2009 which inserted Chapter 5A into the National Health Services Act 2006 ("the 2006 Act"). The actual statutory provisions in Chapter 5A, which were in force at the relevant time, are set out in the Appendix to this judgment. The key stages of this Chapter 5A regime as it applies to NHS trusts are that:-
(a) The Secretary of State decides, after consulting prescribed parties, to make an order authorising the appointment of a TSA to an NHS trust (having taken the view that it is appropriate in the interests of the health service to do so (section 65B(1) to (6) of the 2006 Act);
(b) The Secretary of State then appoints the TSA on the terms and conditions he thinks fit. At that point the chair and directors (non-executive and executive) of the trust board are suspended from office and the TSA takes control of the trust (section 65B(7) of the 2006 Act);
(c) The TSA then has 45 working days to provide to the Secretary of State and publish a draft report stating the action which the TSA recommends the Secretary of State should take in relation to the trust (section 65F(1) of the 2006 Act);
(d) Publication of the draft report is followed by a period of 30 working days during which the TSA must consult on the draft report with those prescribed in section 65H and whoever else the TSA considers it appropriate to consult (section 65G of the 2006 Act);
(e) The TSA must then provide the Secretary of State with a final report within 15 working days from the close of the consultation stating the action he recommends that the Secretary of State should take in relation to the trust (section 65I(1) of the 2006 Act);
(f) The Secretary of State must take a decision on what action to take in relation to the trust within a further 20 working days (section 65K(1) of the 2006 Act); and that
(g) The Secretary of State is therefore required to make a decision speedily. In the present case, it was given within a period of a little longer than 6 months from the appointment of the TSA which means that the TSA process took about a quarter of the time taken by the conventional process.
This case concerns the first TSA to be appointed under those provisions, who was Mr. Mathew Kershaw, who on 16 July 2012 was appointed TSA of South London Healthcare Trust ("SLHT"), which was an NHS trust.
Until 1 April 2013 when they were abolished, the PCTs had an important role in the Health Service because under section 1 of the 2006 Act in force at the date of the decisions under challenge, the Secretary of State has the duty of continuing the promotion in England of a comprehensive health service. Section 3 of the 2006 Act stipulated the Secretary of State's duty which is to provide or arrange the provision of a wide range of services (including hospital accommodation and services) to such extent as he considers necessary to meet all reasonable requirements. Section 2 gave the Secretary of State the power to provide other services as he considers appropriate for the purpose of discharging any duties conferred on him by the 2006 Act.
The Secretary of State had delegated the majority of his functions under that Act to Strategic Health Authorities and Primary Care Trusts, including his functions under section 2 and 3 of the 2006 Act.
The TSA duly produced a draft report on 29 October 2012 ("the Draft Report"), on which he then consulted between 2 November 2012 and 13 December 2012. He then produced his final report entitled " Securing Sustainable NHS Services: The TSA's Report on South London NHS Healthcare Trust and the NHS in South- East London" ("the Final Report") and which was given to the Secretary of State on 7 January 2013.
The Secretary of State commissioned Professor Sir Bruce Keogh, the NHS Medical Director, to review the TSA's recommendations. On 31 January 2013, the Secretary of State accepted the TSA's recommendations with the modifications suggested by Sir Bruce Keogh ("the Decision"). Many of the recommendations concerned hospitals within the SLHT, which was to be dissolved, with its hospitals to be moved to the control of adjoining trusts and these provisions are not the subject of any challenges.
Those recommendations and the Decision also concerned LH, which falls under the auspices, not of the SLHT, but of a completely different trust, namely Lewisham Healthcare NHS Trust ("LHT") and which, unlike SLHT, was not a failing NHS entity, and is an entity over which no TSA has been appointed. It is only the part of the recommendations of the TSA and the Decision of the Secretary of State which sought to reduce the services offered by LH which is the subject of the present judicial review applications. The Claimants seek to quash these Recommendations of the TSA and the Decision relating to services at LH.
These two separate judicial review applications, which have been heard together, have been bought in the first case by the London Borough of Lewisham Council ("Lewisham") represented by Ms. Elisabeth Laing QC and in the second case by Save Lewisham Hospital Campaign Limited ("the Campaign") represented by Mr David Lock QC and Mr Jeremy Hyam. Both claims have been brought against the Secretary of State for Health and the TSA for SLHT, who have been represented by Mr Rory Phillips QC and Mr Ivan Hare. I am grateful to all Counsel for their admirable written and oral submissions, which enabled the hearing to be completed in three days.
Both the Claimants seek judicial review of the Secretary of State's decision dated 31 January 2013 ("the Decision") to accept (with modifications) the TSA's Report so far as it relates to LH. The First Claimant ("Lewisham") also seeks review of the TSA's decision dated 8 January 2013 to make recommendations to the Secretary of State concerning LH.
The Claimants both contend that:-
(i) the Decision is ultra vires because the powers of the TSA and the Secretary of State set out in Chapter 5A of the 2006 Act are confined to the particular NHS Trust in relation to which the TSA was appointed ("the vires argument"). The significance of this is that the TSA procedure is an abridged process which circumvents the more elaborate and time-consuming process of engagement and consultation which would normally apply to a major configuration of services; and
(ii) in the alternative, that the Secretary of State erred in stating that his tests for reconfiguration were met in whole or in part.
In addition, Lewisham argues that...
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