The planned closure of Lewisham’s A&E Department raises the spectre of judicial review

We recently ran a piece which gave a summary of the procedure for judicial review, and how this process might be applied to the NHS given the passage of the Health and Social Welfare Act into law and the restructuring of the NHS which will now follow.

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A prime example of this is the current contention surrounding the planned closure of Lewisham Hospital’s Accident and Emergency and Maternity units.  If you don’t live in London, you might not have heard of the situation, but the gist of it is this: the structure of Lewisham Hospital is to be changed such that it will only handle non-emergency, elective proceduresThis means that the accident and emergency unit will of course close, but that other units will be affected, too.  Maternity, for example, will become what is referred to as a “standalone” unit – that is to say, it will be able to handle routine births where nothing goes wrong, but if, say, an emergency caesarean section is needed, the labouring mother and child will need to be rapidly shipped by ambulance to another hospital.

Why the Concern?

If it were a case of a failing hospital being downsized to make way for a more effective alternative, there probably wouldn’t be cause for alarm; while few people look forward to hospital closures, it would be wrong to say that there could never be a valid reason for them.  But in this case, the proposals at best appear to be poorly thought-out.

Lewisham Hospital is in the top 40 hospitals nationally, and Ofsted had rated its safeguarding services as “excellent”.  Other local hospitals, such as the nearby Queen Elizabeth Hospital currently send surplus patients to Lewisham Hospital.

Indeed, it is Lewisham Hospital’s relationship with the other hospitals nearby which is a key feature of the dispute.  Lewisham Hospital is administered by the Lewisham Hospital NHS Trust; nearby hospitals are run by the South London Healthcare NHS trust (SLHT).  The “Special Administrator” who has been the architect of the planned closure was appointed by SLHT.  Further, the hospitals run by SLHT are heavily indebted to Private Finance Initiatives (some reports indicate they are losing £1 million a week), and NHS rules, somewhat oddly, do not allow for budget surpluses to be redistributed between trusts.  Consequently, the services available at Lewisham will “need” to be withdrawn, “encouraging” residents to make use of SLHT’s hospitals, thus improving the hospitals’ income stream.

The move has been widely opposed by local doctors and residents, and critics have noted that this will leave the Borough of Lewisham with only one accident and emergency unit for a population in excess of 250,000 people (rising to over 750,000 if the neighbouring boroughs of Greenwich and Bexley, which do not have their own A&E departments, are added).  This is perhaps ironic for a borough whose motto is “the health of the populace is the highest law”.

 How does Judicial Review come into this?

Pulse has reported that the Lewisham Council is considering the possibility of making an application for judicial review.  You will recall from our previous article that a public body’s decisions may be subject to judicial review if they are illegal, irrational or there has been procedural impropriety.  Do these criteria apply?  On the face of it, a case could be made:

Illegality: the Special Administrator has been appointed under the auspices of a completely different trust than the one which runs Lewisham Hospital.  Moreover, if the plans are to go ahead, Jeremy Hunt, the Health Secretary, must find that the plans meet four conditions:

  1. Local clinicians must agree – this is highly unlikely, and we direct you to www.savelewishamhospital.com where you can see the strength of opposition from clinical staff in varying disciplines and at varying levels;
  2. The public and local authority must have been “genuinely consulted” – given that the consultation document was not available in libraries or GP surgeries, and that this weekend there was a 25,000-strong march in protest against the proposals, it seems unlikely that this condition – or at least the “genuinely” part of it – can have been met.
  3. The plans must be underpinned by clear clinical evidence – this is uncertain, not least due to the added complications brought about by emergency patients travelling further and longer before they can be seen under the new plans.
  4. Any changes must give patients a choice of good-quality providers.  If the borough is indeed to be left with only one A&E department, it seems unlikely that this condition will be met.

So it seems that illegality may be something of a sticky wicket for the Government and the Special Administrator in this matter.

What of the other criteria?

Irrationality: this criterion is, by its nature, always somewhat subjective.  But it does seem that closing a well-run A&E department and limiting emergency services in other departments to prop up the finances of failing hospitals nearby might be at least somewhat in “defiance of logic or accepted moral standards”.

Procedural Impropriety: One can certainly see how there would be an overlap with some of the concerns raised in illegality – particularly if the Health Secretary presses ahead with the proposals in the face of local opposition.  Further, one might conceivably make the argument that the NHS’s discretion has been fettered by its policy of not redistributing budget surpluses.

Impact on Patient Care

The interesting question of the legalities of the matter aside, the important thing remains – as it always should with the NHS – the impact on patients.  If the proposals do go ahead, it is difficult to see how the impact on patients will be for the better, and at best it will only be neutral.  As ever, if you experience substandard medical care, we urge you to speak to a qualified solicitor – at Asons, we have a team of clinical negligence specialists.  So call us if you have any questions – it never hurts to ask.

We have seen a marked increase in bed sore claims, compensation for misdiagnosis, as well as in the number of cases for things like ectopic pregnancy and missed fractures. All of which have been blamed upon the cut-backs in front line services and overworked A&E departments; the latter of which could be worsened by this planned restructure.

If you’d like to find out more about Asons Solicitors, their medical negligence department, or about their career opportunities; you can visit them at www.asons.co.uk, or you can contact them directly on 0844 850 1062.

Asons Solicitors is a Bolton-based law practice that specialises in medical negligence claims. Founded by brothers Imran Akram and Kamran Akram, Asons Solicitors has evolved into a young and dynamic law firm that delivers practical solutions to clients in times of difficulty. Their continued focus on their staff has seen them awarded with the Investors in People “Gold Award”; which is reflected in the professional and personable approach they take in working with clients. They strive to grow and to develop, and their supportiveness and attention to detail ensures that their clients use them time and again.

For further information contact:

Email: info@asons.co.uk

Website: www.asons.co.uk

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3 Comments

  1. shyn43 says:

    I truly think that trying to encourage compassion in British society is a noble cause
    but one that is destined to fail
    because the kind of society we live in is one in which people only care about themselves and money.

  2. shyn43 says:

    if compassion could be sold
    it would be in every town and city and on every street corner
    but only because of what the sellers would gain…money.
    Because most things in our society is motivated
    it is little wonder that compassion seems to be in short supply.

  3. shyn43 says:

    if compassion could be sold
    it would be in every town and city and on every street corner
    but only because of what the sellers would gain…money.
    Because most things in our society is motivated by money
    it is little wonder that compassion seems to be in short supply.

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