When the initial Trust Special Administrator recommendations for South London were made public there was an immediate chorus (of which I was part) which just said – he can’t do that. It was “obvious” that the TSA had no power to interfere in the service configuration of a trust, Lewisham, which was not under his control.  The Judicial Review by Lewisham Council on this point succeeded, and allowed the Judge to quash the decision – the Council should be congratulated for their intervention.

The case appears to have made clear that there are limits to the extent to which services can be reconfigured without going through the proper, albeit lengthy, reconfiguration process, with the Lansley 4 tests (including GP support) and the other steps, including extensive consultation and both Gateway and National Clinical Advisory Team  Reviews; and with potential for reference through the Local Authority to the Independent Reconfiguration Panel.

The law is now different and in the case of Mid. Staffs, which is a Foundation Trust, we have involvement of the regulator Monitor.  But the principle should still apply; you cannot evade proper process unless the statute very specifically spells this out.

With Mid. Staffs the TSA is recommending that the trust be wound up and its assets and staff split between other bodies.  That power is certainly there.  Now here is the “but”.  The TSA is also recommending changes to the configuration of services, in particular removing some services from Stafford Hospital.  The intention is to consult over these proposals but not through the usual reconfiguration process.  Can he do that?  Well I think there will be a strong case to argue – no.  The TSA appointment to a Trust cannot be used as a back door short cut to avoid the proper reconfiguration process.

The TSA might argue that the consultation over the next few weeks, plus all the work already done, was enough to satisfy the requirements even if the actual guidance and procedure had not been followed.  But this approach was tested by the Judge in the Lewisham Judicial Review and did not get much sympathy.  Who knows.

The approach with Stafford (and the approach with Lewisham) should have been based on making organisational changes first with various transfers then reconfiguration of services under the newly formed governance structures.  The TSA should bring about the transfer of assets and staff but any reconfiguration of services should still have to go through the full proper process, involving the newly formed bodies but led by commissioners.  That may take time and be difficult but it is right and legal.  Let’s face it, with both South London and Stafford the various authorities have been faffing about for years anyway – this time we ought to be able to take time and get it right.

And as a footnote yet again at attempt to bring about service reconfiguration has collapsed since those leading it (and their highly paid advisors) have failed in process – when is there going to be some comeback for all the waste of time and resource that implies?

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7 Comments

  1. Jos Bell says:

    Hmmmm ….I seem to remember an article you wrote in the early days of the Save Lewisham Hospital Campaign where you said that the proposed TSA re-configuration would be ‘Lewisham’s gain’ – which I then argued against for the reasons you cite above and which are now familair to so many. The Judicial Review result was a joint effort between Lewisham Council and the Save Lewisham Hospital Campaign, which the Council has in turn fully supported from the outset.

    Lewisham Hospital and the CCG have all along offered to take QEH Woolwich under their collective wing and make local services work for local people. However this was fobbed off by the TSA and then by Hunt – even though there was no clinical or indeed economic reason to do so. Costing twice as much to dismantle Lewisham Hospital than it would to keep it, instead they focused their attention on trying to destroy the most successful of the 4 hospitals serving the SE London population.

    The NHS is not simply in grave danger at the hands of the current government. Populations such as those in Hammersmith and Fulham where the council is actively working against the survival of local hospitals in favour of land sell-offs and buy-to-leave developments are finding it very difficult to be heard. We are fortunate indeed in Lewisham to have such a supportive and pro-active local authority, as well as many people in the community who have the tenacity to keep up the fight to preserve a hospital which provides a vital service to the population of SE London.

    I do agree that where re-configurations are advisable, the approach must be transparent and the end result demonstrably beneficial. TSA Kershaw managed to swallow up more than £5million in his hugely flawed ‘consultation’ process which lasted only 30 days. The legal costs for Team Hunt will be considerable – and now they plan an appeal, wasting even more taxpayers’ money in the process. As Lord Phil Hunt said on the day of the verdict ‘I am delighted that the court has told the Secretary of State to back off’.

    Please sign the 38Degrees petition to make the other Hunt do just that http://you.38degrees.org.uk/petitions/accept-the-lewisham-hospital-decision

    1. Richard B says:

      It is Lewisham’s gain – it gets another hospital, it adds capacity and revenue which makes it more likely Lewisham as a Trust can make FT status which many doubted it could achieve in its current configuration.
      The JR just delays things, the debate about what constitutes an A&E, what you need in a DGH and the inevitable concentration of specialist services will continue.
      If as most predicted the TSA had just handed the assets and staff to Lewisham trust (which is what they wanted) and left the reconfiguration to them then they would probably have had to reconfigure over time – but using the proper process – that is now the most likely outcome.
      The comparison with Stafford which is not much smaller than Lewisham is worth looking at, as is the example of Good Hope which got rescued in the pre-failure days.
      We need a radically different approach and we need to stop spending millions with the same firms of management consultants who have managed to “fail” every time.

      1. Jos Bell says:

        it will be Lewisham’s gain if they are allowed to manage the process themselves and not lose 60% of their ( some of it new build) site in the process…which is what TSA/Hunt want.

  2. The intention of failure regime(s) (both 2009 and 2012 versions) is to come up with a long term sustainable solutions where previous structures have been unable to do so. By definition that means making changes to services, rather than just kicking the can down the road with more redisorganisation but no tough choices. The policy intent is, therefore, to shortcut the existing consultation process aka ‘faffing around’ (Richard’s words).

    You/we may disagree with that policy (and politicians have contradicted their own policy with political promises, as cited in court) but it is what it is.

    Also funny to see arguments being made here that SOS should *not* have the power to dictate service changes (‘SOS back off’), when the opposite argument was made against the Bill and against FT independence.

    1. Jos Bell says:

      the point is the SoS tried to bend the law to breaking point in order to inflict huge damage on a decent hospital and completely destabilise the SE London health infrastructure. The government clearly hopes this will drive thousands of patients into the arms of the private health sector. Indeed the plans would render the Lewisham site unsustainable within a relatively short timeframe, making what would remain ie The Riverside site, rich pickings for a private company – leaving a borough the size of Brighton or Hull without any NHS hospital provision and rendering A&E provision in the area totally inadequate.

      This is not a simple policy shortcut – but an absolute legal mash up. The rationale given by the govt legal team, including the so-called hypothetical back-up involving Section 8, with added 4 criteria ( after pause for a panicky conflab) made an absolute nonsense of statute.

      Perhaps a few hours spent pottering around QEH might give some idea of the pressure that hospital is already under – the staff there have been desperate for Lewisham to be saved. As I have said, it will cost twice as much ( at least ) to lose Lewisham – the overall £1.093 costs attached to the illegal proposal for 60% slicing of Lewisham services plus attendant re-config costs to surrounding hospitals – than to keep it.

      If the SoS can mess around with the law with such impunity then perhaps we might do without Parliament altogether.

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