Hospital closures and the rule of law

8 November 2013 by

lewisham-dont-keep-calm-posterTrust Special Administrator appointed to South London Healthcare NHS Trust v. LB Lewisham & Save Lewisham Hospital Campaign [2013] EWCA Civ 1409, 8 November 2013  – read judgment

Jeremy Hyam of 1 Crown Office Row acted for Save Lewisham Hospital Campaign. He was not involved in the writing of this post.

It takes a bit of time to close a hospital or make major changes to it. This is because you must go through a complicated set of consultations with all those likely to be affected before action can be taken. Many, if not most, people say this is a good thing, and Parliament has embedded these duties of consultation in the law.

In this case, the Department of Health said it could close the A&E Department of Lewisham Hospital, as well as limiting maternity services to midwives alone and reducing paediatric services – without going through the formal consultation process. The Borough of Lewisham, and a local campaigning group, said that the DoH had no power in law to do this.

The judge, Silber J, agreed with them, and so now does the Court of Appeal. It dismissed Jeremy Hunt’s appeal 10 days ago, and published its reasons today.

If Mr Grayling has his way, it seems unlikely that the Save Lewisham Hospital Campaign would have had “standing” to bring this claim, however meritorious in law it may have been: see my post on this. I dare say this lesson will not be lost on him, though, sadly, many think that such wins against the government make it more rather than less likely that he will implement his changes to the rules in judicial review.

Many of these fights about changes in the health service are driven by mind-bogglingly complicated statutory provisions. But the central wording here is simplicity itself. Section 5A of the National Health Service Act 2006  enables a Trust Special Administrator (TSA) to be parachuted into a failing trust, report to the Secretary of State on what should be done, thus enabling the DoH to get things done in a hurry. But the TSA can only make recommendations in respect of actions

in relation to the trust

And the problem here for the DoH was that the trust into which the TSA was parachuted was not the Lewisham Trust (which was not failing), but the South London Healthcare NHS Trust (SLHT), which ran three other hospitals in South London.

So a short point of statutory construction. The Borough and Save Lewisham Hospital said that the trust “in relation to” which action could be recommended was only the trust into which the TSA had been parachuted. So the TSA of SLHT could not make recommendations in respect of another trust which did not have a TSA. To do so, said the other parties, would drive a coach and horses through the consultation provisions elsewhere in the Act.

As I have said, both courts agreed with this argument. On the face of it, the answer is pretty easy. If the Act had intended the TSA to have a roving brief in respect of other trusts, it would have said so, and would not have have used the words it did – “the trust”.

So we can leave at home a lot of the anti-judge rhetoric that government often uses when it gets told off by the courts. The case is nothing to do with unelected judges imposing over-legalistic values upon the ordinary people of this country. By contrast, the TSA and/or DoH tried to take a highly suspect short-cut because it suited its interests to do so, got caught, and now has to take the steps it wants to take in a lawful way.

And that is what the courts are for – to make sure that government plays by the rules, not just the ones which suit it. Equally, if government wants to speed up hospital reorganisation, then it has to change the law through Parliament, and cope with any political flak which results.

Sign up to free human rights updates by email, Facebook, Twitter or RSS 

Read more:

3 comments


  1. Mary Walker says:

    I find myself with a strange conflict of interests here. I am a constituent in Epsom and Ewell and Chris Grayling is our local MP. He does a fantastic job here protecting our best interests including (pending) saving Epsom Hospital’s A&E and assorted other vital departments and local services.

    Is he not an instrument of parliamentary law and not the maker of it?

  2. Jon Holbrook says:

    On spiked I have argued that judicial review is used increasingly to ensure that public bodies are tied up with bureaucracy and red tape. My argument refers to the Lewisham Hospital case:

    http://www.spiked-online.com/newsite/article/why_cant_the_government_get_things_done/14261#.Un0aK3DwnTo

  3. “I dare say this lesson will not be lost on him, though, sadly, many think that such wins against the government make it more rather than less likely that he will implement his changes to the rules in judicial review.”

    He will regret it though when he’s back in opposition. Evidently that IS lost on him. Ideological and short sighted as ever.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: