Lewisham Hospital: Jeremy Hunt must disclose his reasons for appeal

It is now over three weeks since Jeremy Hunt appealed against the High Court’s ruling on Lewisham Hospital, and we are still none the wiser as to his grounds of appeal.

NHS England

It is now over three weeks since Jeremy Hunt appealed against the High Court’s ruling on Lewisham Hospital, and we are still none the wiser as to his grounds of appeal.

As I explained in a previous article for Left Foot Forward, the High Court ruled comprehensively in favour of the Save Lewisham Hospital campaign in July, quashing Hunt’s decision because he had no legal power to close or downgrade Lewisham’s A&E and maternity services.

It matters that Hunt has not disclosed his reasons for appeal because he is using public money to pursue a case which he is likely to lose and which, despite his protestations, is not in the public interest. Given that taxpayers are paying for this case, we are effectively the client, whether we like it or not.

Disclosure would allow scrutiny of Hunt’s case and, if weak, allow public pressure to be exerted on the government to drop the appeal before even more costs are incurred.

It is hard to guess at the legal basis of Hunt’s appeal because the case against him is so strong. The government’s main defence at the High Court stage was one of statutory interpretation – Hunt argued that the Health Act 2009, which established a regime to deal with failing healthcare providers, was intended by Parliament to allow changes to services provided by a failing NHS trust (in this case the South London Health Trust) and changes to services provided by any neighbouring NHS trust (Lewisham).

The judge, Mr Justice Silber, provided at least eight arguments based on an analysis of the legislation and statutory guidance which ‘individually and cumulatively’ showed that the legislation was only intended to permit changes to failing NHS providers.

The only potential basis I could think of for Hunt’s appeal was the possibility that the legislation and the statutory guidance were at odds with what ministers, other MPs and peers thought they were voting for. It is theoretically possible that they believed that the Bill allowed action in neighbouring trusts when in fact it does no such thing.

The Health Bill was, somewhat ironically, led by Andy Burnham, who was secretary of state for health at the time. I have gone through the Hansard reports for every stage of the Bill and can find nothing which suggests he or any other minister intended the legislation to allow changes to services outside the failing NHS provider in question.

On the contrary, statements by members and peers on both sides of the House show that the debate was proceeding on the basis that the regime only applied to the one failing provider. I have selected some of the most revealing extracts below.

Andy Burnham, second reading:

‘… the Secretary of State would appoint an independent trust specialist administrator to review and consult patients, public and staff on the organisation’s future. Recommendations would be made to the Secretary of State, who would report to Parliament the final decision about the organisation’s future.’

‘The organisation’ is the failing NHS provider. Note the use of the singular – this is repeated throughout the Parliamentary debates. Further, one of the key reasons for the High Court’s ruling was that an administrator appointed to a failing trust is only obliged to consult with parties in that trust before recommending a course of action.

The judge said that it would be very strange if Parliament had meant to give the administrator and health secretary identical powers over several trusts but then only require consultation in one of them.

The Health Act 2009, for example, provides that ‘The trust special administrator must hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust.’

There is no provision to engage staff in any other trust, showing that only changes to the failing trust were intended by ministers.

Lord Darzi of Denham (Labour Parliamentary Under Secretary), House of Lords committee stage:

The regime also gives clarity to staff and patients about the process that will be followed, when decisions will be made, and how they can input into the process. Unlike in the insolvency provisions, staff and patient involvement in this process is guaranteed in the legislation.’

The only staff and patient involvement that is guaranteed by the Health Act is that of the staff and patients of the failing trust, again showing that changes to services provided by other trusts were not envisaged.  

Not once did anyone raise the issue of consultation with patients and staff in other trusts: if anyone had thought that the Bill allowed changes to trusts other than the failing trust, this point would have been raised.

We are therefore no clearer on the grounds for Hunt’s appeal but even more certain that the legislation was only intended to allow changes to failing healthcare providers.

But we shouldn’t be forced to guess reasons, we should be told. And soon.

4 Responses to “Lewisham Hospital: Jeremy Hunt must disclose his reasons for appeal”

  1. JosephJohnODonnell

    I think you can obtain the notice of appeal, for a fee, from the court registry as is a public document. I am pretty sure I have done this a few years ago for a case. Think it cost around £10. Phone the registry but it may depend on who you talk to!

  2. Annie

    That’s extremely helpful, thank you!

  3. JosBell

    No need to spend money! Papers have been with both sets of lawyers for the past few days – details will be in the press over the next couple of days. Appeal Court dates are 28th and 29th October. More info to follow….

  4. Annie

    That’s great, thanks. Will keep an eye out! Just as well really, as when I called the Royal Court’s of Justice civil appeal office they didn’t know if notices of appeal were public documents and said to put my query in a letter to the ‘deputy master’. Which I imagine would have taken years to get a reply to….

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