Save Lewisham Hospital: The Submission to the Judicial Review by Dr. Helen Tattersfield, Chair of the CCG

Today is the 65th anniversary of the NHS, and I’d like to raise a toast to the visionary founders of the health service, who established a system of medical care for all of us, free at the point of entry and paid for out of general taxation, that has demonstrated, and continues to demonstrate, what a universal insurance system should look like.

The lives of my wife and my son were, without a doubt, saved by doctors and nurses in the NHS, and I am also grateful for those who saved me from a serious illness a few years ago. The medical emergencies we faced could have happened to anyone, rich or poor, but for 65 years the NHS has guaranteed that, regardless of how rich or poor you are, all will be treated equally.

The country that created the NHS, and that recognises its value, is the country I want to carry on living in, but it was hijacked 34 years ago by Margaret Thatcher, who was interested in private profit rather than the common good, and governments ever since have continued to behave as though all that counts is the profit of the few at the expense of the many — Tony Blair and New Labour being a particular disappointment.

For sheer destructive will, however, the Tory-led coalition government that has been laying waste to the country since May 2010 has taken the privatising zeal of Thatcherism and New Labour to hitherto unimagined depths. These butchers — mostly privately educated millionaires with a cesspit of mental health problems and a colossal grudge against the world — are determined to try and destroy the public ownership of almost every aspect of life in Britain, with one exception, ironically, being their own salaries.

The 65th anniversary of the founding of the NHS comes the day after two judicial reviews came to an end in the High Court, where, for three days, a judge heard lawyers for the government try to defend the unjustifiable decision, by senior NHS managers and the health secretary Jeremy Hunt, to savagely downgrade services at Lewisham Hospital in south east London. Lewisham is my local hospital, and the plans to downgrade it would be devastating for the people of the borough, which has population of 270,000 people.

Using legislation for dealing with bankrupt NHS trusts, the government last summer appointed a Special Administrator within the NHS, Matthew Kershaw, to deal with the severely indebted South London Healthcare Trust, in the neighbouring boroughs of Greenwich, Bexley and Bromley, and, taking the advice of the medical directors for south east London and London in general, he decided, in his plans announced last October, to sacrifice Lewisham as part of the solution. A proposed merger with one of the SLHT’s hospitals, the Queen Elizabeth in Woolwich, built through a criminally outrageous PFI deal under New Labour, is supposed to lead to Lewisham having its A&E Department shut, which will have a knock-on effect on a range of other acute services, including children’s A&E (which will also close) and maternity services, so that 90 percent of the mothers in Lewisham will have to try and find spare beds in hospitals in other boroughs, none of which have any spare capacity.

The judicial reviews — one submitted by the wonderfully committed Save Lewisham Hospital campaign, and the other submitted by Lewisham Council — challenged the legality of the Special Administrator’s decisions, and of the health secretary Jeremy Hunt for accepting them at the end of January, just after 25,000 Lewisham residents had marched in support of the hospital (see my photos here and here).

While we await a decision from the High Court — and to mark the 65th anniversary of the NHS — I’m posting below a compelling and forensically detailed analysis of the problems with the plans of the senior management of the NHS and the government when it comes to Lewisham, which, it should be noted, has a resonance that reaches far beyond south east London.

The analysis was written by Dr. Helen Tattersfield, a GP in Downham, in the London Borough of Lewisham, who is the Chair of Lewisham’s Clinical Commissioning Group. The CCGs — made up of groups of GPs — took over 80 percent of the NHS commissioning budget on April 1, and although the government’s obvious intention in setting up the CCGs was to allow unprincipled GPs to set up private businesses and then commission themselves, in the most gob-smacking conflict of interest imaginable, the plan will backfire if enough CCGs — like Lewisham’s — continue to believe in the NHS, rather than in a costly skeleton picked apart by vultures.

Below is Dr. Tattersfield’s submission to the judicial review, which I hope you have time to read in its entirety, as she spells out not only how the CCG and all the relevant bodies in Lewisham are opposed to the Special Administrator’s plans, but also how those plans and Hunt’s acceptance of them are completely at odds with the CCG’s powers and responsibilities as set out by the government of which Hunt is a part! It is worth noting that she establishes that the government handed over the power to make all key decisions about the local provision of health services to the CCGs on April 1 this year, which, of course, not only enables the Lewisham CCG to refuse to implement the plans relating to Lewisham Hospital, but also provides an example for CCGs throughout London and throughout the country to follow. Campaigners take note — and start sounding out your CCGs, and putting relentless pressure on them if they turn out to be corrupt.

Submission to the Judicial Review by Dr. Helen Tattersfield, Chair of the Lewisham Clinical Commissioning Group

1. I am a doctor and a General Practitioner and have been elected by my fellow General Practitioners in the Lewisham area to be the Chair of the Lewisham Clinical Commissioning Group.

2. The Lewisham Clinical Commissioning Group (“the CCG”) is a membership organisation that is made up of the 44 GP practices across Lewisham. We are responsible for planning and buying NHS services across the borough, and work with other clinicians and healthcare providers and the local authority to ensure that local people get the most accessible and effective healthcare services possible.

3. Our responsibilities include commissioning the following types of NHS care for our patients and the residents of Lewisham who are not on the lists of a GP practice:

• Elective hospital care
• Rehabilitation care
• Urgent and emergency care
• Most community health services
• Mental health and learning disability services

4. The Clinical Commissioning Group does not commission primary care services, which includes GPs, pharmacists, dentists and opticians. These are commissioned by NHS England. Lewisham CCG is overseen by the National Health Service Commissioning Board which is now known as NHS England. NHS England ensures the CCG has the capacity and capability to commission services successfully and to meet our financial responsibilities.

5. Along with commissioning services, we are also responsible for monitoring how well NHS services are provided to local people. We can do this much better if we hear and understand what people think of their health services and we therefore take great concerns to understand the views of local patients and the public.

6. I would like to make it clear that the CCG completely opposes the proposals that the Trust Special Administrator (“TSA”) made concerning the services that the CCG should commission from Lewisham Healthcare NHS Trust for the people of Lewisham. Prior to 1 April 2013 the individuals who now formed the Board of the CCG were substantially represented on a shadow CCG which functioned as a committee of Lewisham Primary Care Trust. We were therefore the effective commissioners for NHS care for the people of Lewisham in January 2013. We opposed the plans that the TSA put forward in October 2012 and opposed the proposals put forward in his final report to the Secretary of State in January 2013.

7. Although these decisions were taken in January 2013 by the Secretary of State, in practice they were never intended to be implemented before the Health and Social Care Act 2012 was fully implemented in April 2013.

8. In January 2013 the Secretary of State had statutory duties under section 3 of the National Health Service Act 2012 to “provide” hospital accommodation, medical, dental and ophthalmic services and such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considered was appropriate as part of the health service. Accordingly, at this time, the Secretary of State had a direct duty to ensure that a range of healthcare services was provided to people in England, including those living in Lewisham.

9. In practice this duty to “provide” healthcare services was delegated to primary care trusts, including the Lewisham PCT. It is not appropriate for me to comment on whether the Secretary of State retained any theoretical powers to enter into contracts for the provision of health care for people in Lewisham other than by way of the PCT, but I can confirm that in practice all relevant healthcare at University Hospital Lewisham was commissioned by Lewisham PCT and not by the Secretary of State directly.

10. I understand that the situation changed substantially on 1 April 2013 when the provisions of the Health and Social Care Act 2012 were fully brought into force. The effect of the changes was that the legal duty to “provide” healthcare services for the people of Lewisham now lies exclusively with the CCG. Parliament has decided to remove the duty on the Secretary of State to be responsible for providing healthcare services to the people of Lewisham (and throughout the country). This means, as I understand matters, that the only statutory body that has responsibility for providing healthcare services for the people of Lewisham under the amended section 3 of the National Health Service Act 2006 is the CCG.

11. I make this point because I and my colleagues volunteered to serve as members of the CCG and take on the responsibilities of local commissioning on the understanding that the CCG, and the CCG alone, would have statutory responsibility for determining what healthcare services should be commissioned for the people for whom we have responsibility.

12. The CCG has a series of legal duties including our duty to exercise functions with a view to securing continuous improvement in the quality of services provided to patients and a duty to have regard to the need to reduce inequalities between patients. Lewisham is an area of considerable social deprivation and with very substantial health needs. It is our judgement that it is vitally important to retain a full range of services at University Hospital Lewisham in order to ensure that the services are available to be accessed by local people. We do not consider that a significant number of local people who have high levels of social deprivation will find it acceptable or possible to travel to access hospital services outside the borough. I appreciate that this may seem difficult to accept but it is an accepted fact to those of us who have worked for many years in areas of high social deprivation.

13. Each year the CCG needs to set out a plan to explain how it proposes to exercise its functions to commission NHS services to local people. We need to consult local people about this plan and then expect NHS England to conduct a performance assessment of the CCG.

14. However, it is an important feature of the new landscape of the NHS that the powers that the Secretary of State formally had to issue Directions under section 8 of the National Health Service 2006 to primary care trusts does not apply to clinical commissioning groups. I understand that the policy behind this change is that local commissioning of NHS services is to be exclusively determined by the local clinical commissioning groups and that the attitude of “Whitehall knows best” under which decisions about local NHS services were made by the Department of Health should come to an end.

15. There are, of course, mechanisms under which decisions can ultimately be referred up to the Secretary of State if there is local disagreement between commissioners and the local authority. However in this case there is no material disagreement between the CCG and Lewisham Council. We are united in our opposition to the plans put forward by the TSA and endorsed by the Secretary of State in his decision of 29 January 2013.

16. Although these decisions were purportedly made by the Secretary of State in January 2013, in practice they can only be carried forward if the CCG agrees to modify its commissioning contracts with a variety of NHS providers. It is a paradox of the present situation that the plans that the Secretary of State wishes to have implemented can only be carried forward if the CCG agrees to change the terms of its commissioning contracts with, amongst others, Lewisham Healthcare NHS Trust, King’s College NHS Foundation Trust and Guy’s and St. Thomas’ NHS Foundation Trust. I accept that the Secretary of State presently has the theoretical right to issue a Direction under section 8 to direct the Lewisham Healthcare NHS Trust as to which services it should provide at University Hospital Lewisham. However, I would suggest that this is only a theoretical right because:

• a. Parliament has passed amendments to section 8 which, once implemented, will remove the right for the Secretary of State to issue Directions to an NHS Trust;
• b. It is entirely possible that, before these decisions are implemented, Lewisham Healthcare NHS Trust will become an NHS Foundation Trust and accordingly the Secretary of State would lose the right to tell the Board of the Trust which services to provide at its hospitals; and
• c. In any event the scheme that the Secretary of State proposes will only work to the benefit of patients if the CCG agrees to commission additional services from amongst others King’s College NHS Foundation Trust and Guy’s and St. Thomas’ NHS Foundation Trust, and those Foundation Trusts agreed to provide those services.

17. At present the CCG has made no decision to commission additional services from amongst others King’s College NHS Foundation Trust and Guy’s and St. Thomas’ NHS Foundation Trust and it remains entirely unclear whether, even if we wish to do so, these Foundation Trusts would be prepared to make the additional capital investment and employ the additional staff in order to deliver the additional services anticipated in the decision made by the Secretary of State.

18. Unless and until both the CCG and from amongst others King’s College NHS Foundation Trust and Guy’s and St. Thomas’ NHS Foundation Trust voluntarily agrees to commission and provide NHS services in accordance with the plans drawn up by the TSA, there are no legal mechanisms of which I am aware to require the independent NHS bodies which have been given statutory responsibilities to follow the plans drawn up by the TSA and endorsed by the Secretary of State.

19. I would therefore suggest that it is completely misconceived for the TSA to think that he had a mandate to carry out a major reconfiguration of NHS acute services across South East London. The proper position, as I understand it from my perspective as the Chair of a CCG, is that after 1 April 2013 the statutory responsibility for determining which NHS services should be commissioned for the people of Lewisham lies exclusively with the CCG. I would therefore like to make it entirely clear that we disagree with the plans of the TSA because it is our assessment that, if we were to follow the plans set out by the TSA, we would be acting in breach of our statutory duties to commission of care services effectively and efficiently and economically.

20. We do not believe that the configurations of services proposed by the TSA will deliver effective, efficient and economic services for the people of Lewisham and do not wish to see them implemented. The government has taken the decision to require the CCG is to take these decisions locally. I am therefore asking the Secretary of State to accept that he should respect the views of the CCG in not wishing to take forward these reconfiguration plans.

21. It is not for me to judge whether it was lawful for the Secretary of State to take the decision in the first place. However, I would respectfully suggest that responsibility for implementing these decisions has now passed to the CCG, and rests exclusively with the CCG, and that it is our decision whether to implement them.

22. The CCG is the lead Commissioner for the NHS services provided by Lewisham Healthcare NHS Trust. Unless a Direction is issued by the Secretary of State seeking to enforce his decision on the Trust (which may only have temporary effect for the reasons set out above), the CCG will continue to commission services from the Trust.

23. I would also ask the Secretary of State to reconsider his position in the light of the intolerable pressures on Accident & Emergency services at hospitals throughout the NHS. England has a rapidly ageing population and the number of elderly, frail and vulnerable patients is substantially increasing each year. Up and down the country the NHS is recognising that it has insufficient capacity in its Accident & Emergency services to be able to provide proper support for the existing number of people who attend A & E Departments. This is particularly difficult in areas of high deprivation such as Lewisham. Regardless of how the position may have looked in January 2013, given the present pressures on A & E Departments, it is frankly madness to be considering scaling back a highly successful A & E Department such as the one operating at University Hospital Lewisham.

24. The TSA may have produced theoretical models which show to his satisfaction how patient flows can be managed under the configurations that he proposes. As local clinicians and commissioners I must say loudly and clearly, as we did during the TSA process, that we do not agree. We do not accept that there will be sufficient A & E capacity in the new model of care proposed by the TSA, and consider that it will be a disaster for the NHS patients for whom we have responsibility.

25. It may well have been the case that the Secretary of State thought he had responsibility to make these decisions in January 2013. Our view is that this responsibility has now passed to the CCG and we do not accept the analysis put forward by the TSA.

26. That does not mean, of course, that the CCG does not accept that there is a need for change in local NHS services. Change is happening all the time and managing change is a key part of the statutory responsibilities of the CCG.  However, we consider it is important that these changes are managed locally, after local consultation and with local decision-making. In my view, in practical terms, that is the only way in which change can be successfully implemented in the NHS.  It also appears to be the policy of the Government that these decisions should be taken locally and I would therefore ask the Government to stick to its own policy and accept that responsibility for local decisions has passed to the CCG, and that the CCG’s decisions on these matters should be respected by the Government. There is, after all, little point in Parliament providing that statutory responsibility for commissioning local services should rest exclusively with the CCG and not with the Secretary of State if, at the same time, the Secretary of State wishes to make decisions about local services at entirely viable hospitals such as University Hospital Lewisham.

27. I’ve also been informed that, within the evidence filed in support of the decisions taken by the Secretary of State, it is being suggested that “Lewisham CCG did not propose any viable alternative to the TSA’s recommendations.”

28. In my view this suggestion is misleading. Lewisham CCG consistently, both in the formal TSA meetings and in meetings with Mr. Kershaw, put forward a strong view that there were alternative solutions to the proposals he was putting forward.   We consistently explained to Mr. Kershaw that once decisions had been made about which hospitals previously operated by SLHT were to be passed to which local NHS provider, local solutions concerning acute care could be developed. We were mindful of the financial pressures but were equally aware that, with the current configurations of services, a merged hospital Trust running University Hospital Lewisham and Queen Elizabeth Hospital, Woolwich was projected to operate at a surplus once the 2 hospitals came under a single Trust. We were therefore confident that proper planning could be carried out locally to develop proposals  which could both save the required expenditure and maintain an appropriate health provision for local residents in Lewisham. We also stated that this would be more likely to produce a sustainable outcome as it would maintain confidence in the local trust and was more likely to be supported by local residents. In the TSA model we believe that the bulk of Lewisham residents will choose not the new Lewisham/Woolwich trust but central London hospitals putting unmanageable pressure on these hospitals and leaving Queen Elizabeth still in financial difficulty.

29. It is also a consistent statement of the TSA that his decisions were supported by the clinical advisory group. What he does not mention is that many of the decisions were agreed with qualifications which were later lost, and that dissenting views were neither acknowledged nor alternate scenarios modelled. Alternate views were either dismissed without discussion or passed over with the comment that there was not time to look into any alternatives.

30. It is disappointing that all of our suggestions appeared to be dismissed by the TSA as unreasonable because we were not prepared to start from a working assumption that the number of major hospitals providing emergency services within South East London should be reduced from 5 to 4. We were not saying that we necessarily ruled out such an option but were not prepared to start with that proposition as a “given” particularly as it was made on a financial rather than clinical needs basis. It does seem to me slightly ironic that the decision of the Secretary of State has effectively rejected the central tenet of Mr. Kershaw’s analysis that emergency services should be reduced to only 4 hospitals. The changes made by the Secretary of State, entirely without any consultation, are supposed to have resulted in the position where 75% of emergency patients at Lewisham will continue to be provided with emergency services at this hospital.  Those changes undermine the fundamental plan that Mr. Kershaw asserted was non-negotiable, and therefore entirely justify our position that other solutions ought to be investigated before the decision was taken to remove emergency services from University Hospital Lewisham.

31. A constant theme of the TSA was that the speed of the task meant there was no time to develop alternative plans or models than those being put forward by them.  We were told there was only one solution, there must be one “local” hospital and that had to be Lewisham, meaning that all effective emergency services had to be removed from Lewisham.

32. Furthermore, the TSA made it impossible for us to develop proper alternative proposals. The detailed financial information which lay behind the TSA decision was never shared with us and to my knowledge was not made known to the CCG Director of Finance. It was not possible therefore for us to work up a full and proper alternative plan or properly challenge what was being proposed.

33. If we were given the necessary information and sufficient time, it would still be possible and indeed desirable to model alternative proposals to those recommended by the TSA and then determined by the Secretary of State.

34. I believe the local NHS commissioners and providers could work together to develop proposals which would ensure a much better and more efficient health economy in South East London, including in Lewisham, and would be far more sustainable than those decided by the Secretary of State. They would also be likely to attract far more local public and patient support. I cannot stress too strongly how having a hugely unpopular reconfiguration imposed on local people makes the job of the CCG nigh on impossible. Unlike the Secretary of State, we have duties to work on a daily basis with local people. We have a statutory duty to listen to them and work with them to improve their health services. However, these decisions have meant that there is almost universal public and professional opposition to the changes proposed to the health services in the Lewisham area.

35. In contrast, if these decisions are set aside and decisions are made locally, we can develop a properly functioning hospital, trusted by local residents, serving more patients who want to access and use local services. This is far preferable to attempting to persuade people to travel to the overloaded central foundation trusts.  This would have been a far better outcome for our very deprived population.

36. I therefore hope that, even at this late stage, the Secretary of State will see the complete folly of the plans he has approved and will accept that these are decisions which ought to be taken locally.

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).

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