R (on the application of LB of Lewisham and others) v Secretary of State for Health and the TSA for South London Hospitals NHS Trust High Court of Justice (Queen’s Bench Division) Administrative Court [2013] EWHC 2329 (Admin)
Judgment here
None of this of course was ever meant to happen (except it was, because the history is elegantly deciphered in “NHS SOS”, edited by Tallis and Davis). Remember this?
The Lewisham decision was taken relating to a specific legal problem, in a particular place at a particular time. Judge Silber therefore applied the law to that particular situation, and he specifically did not wish to go into the merits of the case. He just looked at how the decision was taken, which was a bad mess. Jeremy Hunt, the Secretary of State for Health, either received bad legal advice, or chose to ignore the legal advice he was given. There are useful lessons to be learnt from the judgment (“Judgment”) though, which is a beautiful piece of work. Certain issues were avoided altogether, such as how next to proceed (is there a need for a reconsultation? who should now make the decision? The Judgment does not discuss whether neoliberal economics produces the best outcome for patients in the National Health Service, nor does it opine on the eventual consequences of failure regimes around the country. It takes the case law further, but the danger is that too much can be read into its significance. However, in terms of morale and confidence, this was undoubtedly a much needed ‘boost’ for the patients, public and clinicians of Lewisham.
At the root of the problem, the Prime Minister had said:-
“What the Government and I specifically promised was that there should be no closures or reorganisations unless they had support from the GP commissioners, unless there was proper public and patient engagement and unless there was an evidence base. Let me be absolutely clear: unlike under the last Government when these closures and changes were imposed in a top-down way, if they do not meet those criteria, they will not happen.”
The draftsman of the parliamentary legislation is aware of the problem posed by the Secretary of State having a duty to provide a comprehensive NHS. This is, of course, the major faultline in English health policy, with both the Conservatives and Labour truly adamant about ‘comprehensive, free-at-the-point of use, universal’, while stories appear all the time – in a drip-drip fashion – about the manifestations of rationing. Again, Silber can only refer to the law as it was at the time in para. 61:
61 All these matters have to be considered against the background that under Section 1 of the 2006 Act, the Secretary of State has the duty of continuing the promotion in England of a comprehensive health service. Section 3 of the 2006 Act specifies the Secretary of State’s duty 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 gives 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.
Against this is the backdrop that each NHS Trust is a separate financial and clinical entity, allowing for units to be ‘ringfenced’ as or when they run into financial or clinical problems. The problem has emerged where the parliamentary draftsman has found himself producing every voluminous legislation to cover any eventual possibility, which is why Silber is able to state confidently as a point of legal fact at para. 76:
76 It is clear that each NHS Trust is a separate entity, and this issue raises questions of statutory interpretation.
The tension in reconciling the needs of the entire National Health Service and local resource of allocation, of course, had to be addressed, and indeed it was. What is certain is the extent to which national policy will be sketched out for the strategic and operational management of the entire NHS, calling into question the mantra of Andy Burnham MP, “putting the ‘N’ back into NHS”.
81 Third, the Parliamentary draftsman chose to distinguish between “the interests of the Health Service” and those of the Trust.
What clearly emerged yesterday was that any-old promise does not produce a ‘legitimate expectation’ in this jurisdiction. This of course will also be great news for Nick Clegg after his tuition fees fiasco. Indeed, in my blogpost of July 7th 2013 for the “Socialist Health Association”, I wrote the following:
“And what about the actual law? R v. Inland Revenue Commissioners ex parte MFK Underwriting Agents Limited (1991) WLR 1545 in which Bingham LJ and Judge J stated that, for a statement to give rise to a legitimate expectation, it must be:
“clear, unambiguous and devoid of relevant qualification” (para. 1570)
The promise has to be made by the decision maker: R (on the application of Bloggs) v Secretary of State for the Home Department [2003] EWCA Civ 686, [2003] 1 WLR 2724. Further the promise must be made by someone with actual, or ostensible, authority, otherwise the decision will be ultra vires: South Buckinghamshire DC v Flanaghan [2002] EWCA Civ 690, [2002] 1 WLR 2601. The promise has to be made by the decision maker: R (on the application of Bloggs) v Secretary of State for the Home Department [2003] EWCA Civ 686, [2003] 1 WLR 2724. Further the promise must be made by someone with actual, or ostensible, authority, otherwise the decision will be ultra vires:South Buckinghamshire DC v Flanaghan [2002] EWCA Civ 690, [2002] 1 WLR 2601.”
Justice Silber felt, like me, that there could be no legitimate expectation:
99. In this case, the Secretary of State was merely saying that he intended to rely on the Chapter 5A regime which is a rapid decision-making process in which services can be properly configured, but only provided that certain requirements were met. Indeed in his statement, the Secretary of State was saying nothing more than that he proposed to rely on the statutory regime which included certain requirements to consult. This was uncontroversial and does not alter what the Secretary of State was obliged to do.
100. In my view, the Minister’s statement relied on by the Campaign cannot give rise to a legitimate expectation because as a matter of general principle the undertaking or promise which gives rise to the alleged legitimate expectation must be, in the words of Bingham LJ, “clear, unambiguous and devoid of relevant qualification” (R v Inland Revenue Commissions, ex parte MFK Underwriting Agencies Limited [1991] WLR 1545 at 1569).
Having said there was no ‘legitimate expectation’, I felt it was quite generous of Silber nonetheless to consider the ‘promise’ in para 112:
112. The four reconfiguration requirements were designed for local service reconfigurations and not for decisions under Chapter 5A of the 2006 Act, which is, as I have explained, an expedited and emergency procedure. Paragraph 39 of the Statutory Guidance states that:-
“In assisting the Secretary of State to make a final decision on the future of the organisation, [the TSA] should have regard to the Secretary of State’s four key tests for service change in developing his or her recommendations i.e. local reconfiguration plans must demonstrate support from GP commissioners, strengthened public and patient engagement, clarity on the clinical evidence base and support for patient choice.”. (Emphasis added)
And all of this is a legacy of the Lansley bygone era. Lansley’s “promise” may have been politically expedient at the time, but clearly had not escaped the attention of Silber:
109. In an article in the Daily Telegraph on the following day, Mr Andrew Lansley, M.P., who was then the Secretary of State, explained the new principles stating that they “will not merely be another tick-box exercise – it will be a tough test which every proposal must pass if it is to succeed”.
It had even been sufficient for Sir David Nicholson to confirm this:
123 The Claimants point out that after his initial letter of 20 May 2010, Sir David Nicholson wrote again to all NHS Chief Executives on 29 July 2010 referring again to these four new requirements explaining that “the Secretary of State has also made it clear that GP Commissioners will lead local changes in the future”.
124. The letter also attached a document entitled “Applying the Reconfiguration Test”. Under the heading entitled “Support from GP Commissioners”, the process is defined in this way and with emphasis added:-
“Local commissioners and consortia should review the current evidence of engagement with GPs and the level of support and consensus for a proposed service change. As GP/practice based commissioning structures vary across the country, local commissioners will need to take an appropriate view as to how best to gather this evidence, with PCTs supporting this process where required. Commissioners will need to consider the engagement that may need to take place with practices whose patients will be significantly affected by the case for change, inviting views and facilitating a full dialogue were necessary”.
Where the Judgment really comes into its own is at this point. It first of all accepts that the consultation which took place, in terms of patient engagement, “worked”:
141 The engagement with patients and the public also occurred through patient and public advisory groups as well as in individual meetings with representatives of many local involvement networks and focus groups. There was also formal consultation on the draft recommendation with 27,000 full consultation documents and 10,000 summary documents distributed through 2000 locations across South East London.
However, the judicial consideration of the extent to which ‘patient choice’ matters is clearly set out in para. 166. While this might seem like a rather terse exercise in statutory interpretation, it is obviously significant as to whether any one group of patients, however articulate, can ‘veto’ a progress of policy. This wider nuanced interpretation is very helpful, in that it allows clinicians also to have their say about patient issues legitimately:
166. Mr Phillips submits correctly that this requirement to be “consistent with” in this requirement cannot and does not mean “the same as”. The Secretary of State was quite entitled to accept the view that concentrating clinical sites to drive up clinical quality so that although it inevitably reduces patient’s choice, it still increases choice between high quality services.
There are discussions to be had about whether CCGs will be impressed about the ‘snake oil’ nature of ‘more for less’ (which is rapidly becoming ‘less for less’, or even ‘less for more’, as some NHS budgets become subsumed in paying off high-interest loans for PFI arrangements). The ‘more for less’ philosophy is of course pervasive in the pitches for CCGs in the philosophy of making existant staff ‘working more effectively’ or working ‘more imaginatively’. Whilst integrated teams, downsizing clinical specialisms, may appear to save money to make Nicholson savings work, coupled with unsafe doctor:bed or nursing:bed ratios, a highly toxic mix of ‘front door firefighting’ might emerge, leaving only HSMRs much later down the line to pick up any damage done possibly. Of course, the platitude that it can all be done in the community might sound nice, but it is not so much if the decisions of Consultants leads to quick-fix TIA management leading to full-blown haemorrhagic strokes. This of course is a personal tragedy for the patient, as well as a hole in the budget for NHS managers. Nor indeed, a quick-fix unstable angina management leading to a full-blown coronary artery bypass graft. The NHS will remain crippled with the implementation of a “jam tomorrow” philosophy, but there are lots of clever salesmen out there to pull the wool over the eyes of vulnerable people.
However, the Lewisham result is monumental. It restores faith in the idea that the views of clinicians, public and the patients matter. It is hugely important that the judiciary should say to the legislature that the Secretary of State acted outside the law – he actually UNLAWFULLY. It restores faith in the idea that somebody will listen to it all fairly. It restores faith in the idea that nobody is above the law. Whilst the focus of the Lewisham judgment was focused on Lewisham policy issues, there are, as argued above, huge implications for the rest of English health policy, and, crucially, the manner and style in which it is conducted. Lack of even ‘shotgun diplomacy’ is no longer an option. Certain people, especially Jeremy Hunt, will have to tread very carefully. Finally, I should like to pay a personal tribute a huge army of people involved in this. It would be unfair to single out particular individuals, but please do allow me to say thank you to @jos21, @carolmbrown, @drmarielouise, @lewishamcouncil, @goonerjanet, @savelewishamAE, @snigskitchen and @drjackydavis (list not to be read “expressio unius est exclusio alterius” as the lawyers say.)
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