Lewisham Hospital Saved! Judge Rules Jeremy Hunt’s Downgrade Plans Unlawful

31.7.13

We won! Congratulations to the tens of thousands of campaigners who have been fighting to save Lewisham Hospital for the last eight months, since plans to severely downgrade services at the hospital were first announced.

Today in the High Court, Mr. Justice Silber, ruling on two judicial reviews submitted by the Save Lewisham Hospital campaign and Lewisham Council, ruled that the health secretary, Jeremy Hunt, had acted unlawfully when he approved proposals by an NHS Special Administrator, Matthew Kershaw, to severely downgrade services at Lewisham Hospital. The ruling is here.

This was a stunning victory for campaigners — myself included — who have fought the proposals for the last nine months, ever since they were announced at the end of October 2012 by Matthew Kershaw, an NHS Special Administrator appointed to deal with the debts of a neighbouring NHS trust, the South London Healthcare Trust, based in the boroughs of Greenwich, Bexley and Bromley, which was losing over £1m a week, partly through ruinous PFI deals.

Kershaw’s plans involved shutting the A&E Department, including children’s A&E, so that the majority of the 110,000 people seen every year in Lewisham would have to go elsewhere — particularly to Queen Elizabeth Hospital in Woolwich, one of the SLHT’s hospitals, which is to merge with Lewisham. The plans also involved the loss of other acute services, cutting maternity services so that only 1 out of every 10 mothers in Lewisham would be able to give birth in the borough, and selling off 60 percent of the hospitals’ buildings and land.

Kershaw was the first appointment under the Unsustainable Providers Regime, legislation initially passed by the Labour government for dealing with NHS trusts facing serious financial problems, but from the beginning it was clear that it was unacceptable to downgrade Lewisham Hospital — run by a solvent NHS trust — as part of the solution to the problems of the SLHT.

That obvious unfairness — plus the downgrade of maternity services and the closure of A&E, requiring a journey to Woolwich that can take up to two hours on public transport at rush hour — led to the creation of a huge grassroots campaign, which involved 15,000 people attending a march and rally in the rain in November, and 25,000 people attending another march and rally in January (and also see here), just before Jeremy Hunt approved Matthew Kershaw’s proposals.

In response, the two judicial reviews were launched. The council’s legal challenge was based on the powerful claim that “the decisions are beyond the powers set out in the Unsustainable Provider Regime. The UPR confers powers on a Trust Special Administrator and on the Secretary of State respectively to make recommendations, and to take action, about the NHS Trust to which the TSA has been appointed, in this case the South London Healthcare NHS Trust. It confers no powers to take action about and NHS Trust, such as Lewisham Healthcare, to which a TSA has not been appointed.”

The Save Lewisham Hospital campaign’s legal challenge focused on four tests that were supposed to have been satisfied for the recommendations to be approved — that there was a clinical evidence base underpinning the proposals; that the changes have the support of the GP commissioners involved; that the changes must genuinely promote choice for their patients; and that the public, patients and local authorities have been genuinely engaged.

In approving the legal challenges, Mr. Justice Silber backed the council’s challenge, and also accepted that one of the four requirements in the Save Lewisham Hospital campaign’s challenge had not been met. As the Independent described it, he “ruled that the administrator had no powers to make decisions affecting Lewisham or any hospital outside SLHT, and Mr. Hunt had breached the provisions of the National Health Services Act 2006 when he approved the plans.”

Mr. Justice Silber also ruled that the TSA and the government had failed to demonstrate that the proposed changes had “the support of the GP commissioners involved,” something made abundantly clear in the powerful submission by Helen Tattersfield, the Chair of the Lewisham Clinical Commissioning Group, which I made available here.

The government has threatened to appeal, but I can’t see how that can be anything other than an empty threat. More worrying is the Independent noting that, although the ruling “has cast serious doubts over the powers of Trust Special Administrators,” the Department of Health is understood to be “examining whether it could change legislation to expand their powers so that they could authorise broader service shake-ups beyond their trust.”

For now, as we celebrate this rare victory over the government, which is inspiring people up and down the country to believe that resistance is not futile, it is important to remember that we now need to be alert to the details of the merger of Lewisham and the Queen Elizabeth, which is going ahead, and also to watch out for what the senior NHS managers who backed Matthew Kershaw’s proposals will do next.

Personally, I believe that serious questions about the competence of these individuals — and their commitment to the NHS — need to be asked, particularly about Dr. Jane Fryer, the medical director of the NHS in south east London, who was Matthew Kershaw’s chief medical advisor, but also about Dr. Andy Mitchell, the medical director of NHS London, who also played a role in supporting the recommendations, and Sir Bruce Keogh, the medical director of the NHS in the whole of England.

As I explained after one of the sham consultations that the TSA held in November and December, “The biggest insult of the night … was when Dr. Jane Fryer brushed aside complaints about the Special Administrator’s lack of a mandate for his planned destruction of Lewisham Hospital by stating that the carve-up of the SLHT had provided a timely opportunity for the reorganisation of NHS services across south east London, which would have happened anyway, but just a little later.” I don’t believe that Dr. Fryer has been held to account for her comments, but I think she should be, and I also believe that she provided an indication of why, without a serious shake-up of NHS management, the plans to destroy Lewisham will return at some point.

For now, however, everyone involved in the campaign that led to this hugely important success in the High Court deserves to take some time to bask in this moment. Victory is possible!

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here – or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the four-part definitive Guantánamo prisoner list, “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.

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42 Responses

  1. Andy Worthington says...

    Earlier, on Facebook, I posted the photo above from outside the High Court, and wrote:

    We won! In a stunning victory for justice today, a High Court judge ruled that the government’s plans to severely downgrade services at Lewisham Hospital to pay for the financial problems of a neighbouring NHS trust were unlawful. I’ll be posting an article soon, but for now here’s my photo of the victory placards getting their first outing, soon after the ruling was announced. Congratulations to everyone involved!

  2. Andy Worthington says...

    Dejanka Bryant wrote:

    I have tears in my eyes, Andy. It is so important for our democracy, to stand against corporate evil companies. How I wish our nearest hospital stayed open. We need to be driven now miles and miles away from our home to another town. We didn’t fight enough. Congratulations to all of you and us from far away signing the petition to save the Lewisham Hospital.

  3. Andy Worthington says...

    Sylvia Martin wrote:

    Fantastic news to those of us across the pond. Congratulations!

  4. Andy Worthington says...

    Sue Glenton wrote:

    Well done

  5. Andy Worthington says...

    Kate Pearce wrote:

    wonderful news – well done to all who helped campaign!

  6. Andy Worthington says...

    Reena Carnation wrote:

    Well done, Andy, and thanks for what you do for others.

  7. Andy Worthington says...

    Paula Helliwell wrote:

    well done

  8. Andy Worthington says...

    Amy Phillips wrote:

    you did it! so proud. you can do anything…next on the to-do list: Guantanamo!

  9. Andy Worthington says...

    Thanks, Dejanka, Sylvia, Sue, Kate, Reena, Paula and Amy, and everyone else who has liked and shared this. I don’t think you didn’t fight enough, Dejanka, as it’s only because of the specific Special Administrator provisions and the lack of a remit to include Lewisham that we managed to secure this victory. Elsewhere, it has not yet been established widely enough that if the NHS proposes closures and reorganisations, it might not be because that’s the best thing to do, but because the managers responsible have forgotten what the NHS is supposed to be.

  10. Andy Worthington says...

    And Amy, thanks for those encouraging words. If only closing Guantanamo involved a judicial review with a sensible judge …

  11. Andy Worthington says...

    Nicola Mattiagne wrote:

    Congratulations Andy and well done to everyone who worked hard to campaign.

  12. Andy Worthington says...

    Nicola Mattiagne wrote:

    You’re all a shining example when people come together to challenge the system and let’s hope your hard work will inspire other regions and communities .

  13. Andy Worthington says...

    Thanks, Nicola. I played only a small part, I believe, through my photos and articles, and I’d like to thank the many other people who literally gave up whatever else they were doing to work exclusively on this, or who have, for 8 months, given up all their spare time. The most important message from Lewisham is that we discovered that a successful campaign involves many, many people prepared to give their time and their talents to the cause – and that it is also crucial to get 25,000 people prepared to march to show the government that Lewisham will not be defeated!

  14. Andy Worthington says...

    Umm Ghazi wrote:

    Just saw a glimpse of you on bbc 10 oclock news waving a banner :-) well done all, just goes to show the occasional victory for common sense is still possible

  15. Andy Worthington says...

    Thanks, Umm Ghazi. Glad to see it on the 10 O’Clock News! The coverage seems to be very positive, now that we’ve secured victory. I cannot thanks Mr. Justice Silber enough for doing his job, and not being swayed by political pressure. Judges can still protect us from corrupt politicians and bureaucrats. Not always, but sometimes, and today was a shining example of that.

  16. Andy Worthington says...

    Umm Ghazi wrote:

    Lets hope the ppl of balcombe can have the same sucess against the frackers who are about to wreack havoc on the west sussex enviroment, sadly their local mp has shares in the company, so difficult to get impartial goverment representation these days.

  17. Andy Worthington says...

    As for fracking, Umm Ghazi, it seems to me that we need committed young people prepared to fight it, as happened in the 1990s in the road protest movement. To allow it to proceed unchallenged may well be an ecological death sentence …

    Note: See stories here: http://www.bbc.co.uk/news/uk-england-sussex-23515012
    http://www.bbc.co.uk/news/uk-23513540

  18. Andy Worthington says...

    Umm Ghazi wrote:

    Yes the senior judicary of the uk often does comes up trumps for justice where politicans with private agendas fail us all, the job description of public servant seems to have escaped many.

  19. Andy Worthington says...

    Leona Starr Mars wrote:

    Well done…

  20. Andy Worthington says...

    Thanks for the support, Leona. Good to hear from you.

  21. Andy Worthington says...

    Leona Starr Mars wrote:

    Keep up the good work Andy…..you are a blessing…

  22. Andy Worthington says...

    Colin Maclean wrote:

    I fucking LOVE Lewisham, so proud of our people and the council for taking this all the way, what a fantastic community to be a part of! We STAND UP. If I’m honest I thought we would lose this, so I’m extremely pleased with today’s ruling, PROTEST & SURVIVE

  23. Andy Worthington says...

    Saleyha Ahsan wrote:

    Jeremy Hunt acted unlawfully. Enough said!

  24. Andy Worthington says...

    Lindis Percy wrote:

    Fantastic news and shows what can be done when the people are stirred! HOORAY!

  25. Andy Worthington says...

    Thanks for the comments, Colin, Saleyha and Lindis. A wonderful day, and an all too rare demonstration of what we the people can do when we mobilise. I don’t blame you for your doubts, Colin, but I had a good feeling, based on my experience of judges examining the arguments, and not succumbing to political pressure. It doesn’t always happen, but I saw it in the case of Binyam Mohamed, and we saw it again today. This was my report on the judicial review for Binyam Mohamed back in August 2008 (which also involved lawyers at Leigh Day, who did such a great job for Lewisham): http://www.andyworthington.co.uk/2008/08/30/high-court-rules-against-uk-and-us-in-case-of-guantanamo-torture-victim-binyam-mohamed/

  26. Andy Worthington says...

    Lindis Percy wrote:

    I’ve been in front of Mr Justice Silber in the past. He was a good man then.

  27. Andy Worthington says...

    He hasn’t always made good rulings, Lindis. Rather shamefully, he defended the government’s use of secret evidence back in November 2009: http://www.andyworthington.co.uk/2009/11/19/uk-judge-approves-use-of-secret-evidence-in-guantanamo-case/
    However, in July 2010, he was the judge in charge of allowing documents to be released which revealed the involvement of Tony Blair and Jack Straw in the transportation of British nationals to Guantanamo: http://www.andyworthington.co.uk/2010/07/15/uk-sought-rendition-of-british-nationals-to-guantanamo-tony-blair-directly-involved/

  28. Diana says...

    I was so happy when I heard the news yesterday! Really inspiring and amazing that such a strong and unrelenting campaign has led up to this moment. Your coverage of the campaign has been really good too. I agree it’s good to take a moment to bask in this glory at this moment in time!

  29. Carol Brown says...

    Together we all did brilliantly! I am so proud. Just a couple of things, meant as reminders not criticisms ( as you know my memory’s poor, so while I remember!)
    Lewisham Hospital would also have lost its 18 bed critical care unit (ICU & HDU) which saved me. It is occupied to 95 % capacity (full). I am currently doing FOI requests re other critical care beds in London.
    Also, who was on the panel?! I think there was a health administrator. And sometimes there was a surgeon from Kings- Mr Merriman, I think. He shouted at me (obviously ill) that we were not in the highlands when I said about times of travel.
    Keep up the good work!

  30. Andy Worthington says...

    Thanks, Diana. Great to hear from you, and thanks for the supportive words.

  31. Andy Worthington says...

    Thanks, Carol – and great to see you yesterday at the celebration outside the hospital!
    Thanks for mentioning the 18 bed critical care unit (ICU & HDU). I may not have stressed sufficiently how the proposals would have brought all acute care to an end, thereby slowly killing the hospital to prepare it for its reincarnation as a centre for elective care in south east London – not what we need, obviously.
    And yes, as I mention in the article, we need to put the spotlight on the medical directors – including Dr. Jane Fryer, the medical director of the NHS in south east London, who was Matthew Kershaw’s chief medical advisor, but also Dr. Andy Mitchell, the medical director of NHS London, who also played a role in supporting the recommendations, and Sir Bruce Keogh, the medical director of the NHS in the whole of England. You’re also right to mention Dr. Mike Marriman, the medical director of King’s, who was also involved. He was at the sham consultation at the Calabash centre, where I remember him patronising us, like the other medical directors, but I didn’t know he’d been rude to you about the travel times. Also worth mentioning – and keeping an eye on, is Hannah Farrar, the strategic advisor to Kershaw, who had been Director of Commissioning at NHS London, and is now working with Ruth Carnall, former chief exec of NHS London, “providing strategic advice to the healthcare sector in the UK and abroad,” as her Twitter account describes it: https://twitter.com/hannahjfarrar

  32. Dr Anon says...

    Leave Jane & the other Medical Directors alone! They are all good people who will still be serving & treating patients long after this coalition is gone. Jane is devout & is against Guantanamo.

  33. Andy Worthington says...

    Interesting comment, Dr. Anon, but I can’t agree about the role of Dr. Fryer and other medical directors, up to and including Sir Bruce Keogh. I believe there are fundamental problems with all the medical directors, who have accepted the need for financial cuts rather than standing their ground and arguing that services must come first. The example of Lewisham demonstrates what happens when money comes first. The medical directors fool themselves into thinking that their plans put clinical needs first, when they don’t, and, at best, they fail to see how ruinous the axing of all acute services in Lewisham would be to Lewisham’s population of 270,000. The medical directors need to work out how to provide comprehensive medical services for every borough in London, not recommend cuts that will lead, primarily, to already overstretched services elsewhere being even more overstretched, while the people of Lewisham suffer delays and inconveniences that are not acceptable, and almost certainly a number of deaths in transit that are completely unacceptable. The medical directors may mean well, but they are as out of touch with the real world as the politicians are.

  34. Andy Worthington says...

    Saleyha Ahsan wrote:

    I cannot rate Leigh Day enough – they are fantastic in the work they do and results they achieve. I met one of their lawyers recently and was so impressed with their cooperation and appreciation of what the bigger picture is for winning the case for their clients and thus being most helpful in my own journalistic enquires – a very welcome change in comparison to other lawyers with high profile clients and who are unhelpful and exclusive.

  35. Andy Worthington says...

    Yes, Saleyha, I agree. Their work with Reprieve on the Binyam Mohamed case was inspiring.

  36. Andy Worthington says...

    Mo D’oh wrote:

    well done!!!

  37. Andy Worthington says...

    Thanks, Mo D’oh. It’s so important to be able to win an important battle every now and then!

  38. Andy Worthington says...

    Colin Maclean wrote:

    Here’s a finger (with love from Lewisham) in the eye Mr Hunt and Mr Cameron

  39. Andy Worthington says...

    Thanks, Colin. So proud to be living in the borough that gave Hunt and Cameron and Lansley and Osborne a metaphorical kicking. Hope you can come to the demo for the NHS in Manchester during the Tory conference on Sept. 29: http://www.nursingtimes.net/unions-plan-nhs-demo-for-tory-conference/5060121.article

  40. Carol Brown says...

    Thanks Andy, I’ve spoken many times about the ICU etc, partly because people who support or who are equivocal about ‘downgrading’ A&Es are often very ill-informed. When they find out it would mean 1,000s of deaths it can open their eyes to the reality.
    Going forward, I would appreciate your journalistic support for my continuing ICU campaign if you can – sorry, I know you have a lot on.! I’ll email you.

  41. Andy Worthington says...

    Thanks, Carol. That’s very important information. Please do email me.

  42. Lewisham wins High Court battle against Jeremy Hunt’s unlawful cuts plan says...

    [...] Click here for Andy Worthington report, Journalist and Lewisham Campaigner [...]

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