Appeal Court Victory for Lewisham Hospital – But Tories Respond with New Legislation to Close Dozens of Hospitals

On Tuesday, the year-long struggle to save Lewisham Hospital from butchers in the government — and in the senior management of the NHS — ended in victory for campaigners, when the Court of Appeal turned down an appeal by health secretary Jeremy Hunt. The government sought to overturn the High Court’s ruling, in July, that Hunt had acted unlawfully when he approved plans for Lewisham put forward last October by Matthew Kershaw, an NHS Special Administrator.

Appointed under legislation for dealing with NHS trusts in severe financial difficulties (the Unsustainable Providers Regime), Kershaw had proposed closing A&E and other frontline services and selling off over half of Lewisham Hospital’s buildings and land as part of a package of proposals to address the financial problems of a neighbouring NHS trust, the South London Healthcare Trust, which has three hospitals in south east London. The result would have been just one A&E Department for the 750,000 inhabitants of the boroughs of Lewisham, Greenwich and Bexley, and a disgraceful scenario in which 90 percent of the mothers in Lewisham (a borough with a population of 270,000) would have been unable to give birth in their home borough.

Responding to the news, Tony O’Sullivan, the Director of Services for Children and Young People at Lewisham, and a member of the Save Lewisham Hospital campaign, said, “This is a complete victory.” Referring to ministers and the Special Administrator, O’Sullivan added, “We always said they were acting unlawfully and undemocratically in using an emergency process to bypass meaningful consultation and destroy an excellent hospital.”

Rosa Curling of Leigh Day, who represented the Save Lewisham Hospital campaign, which applied for a judicial review along with Lewisham Council, said, “We are absolutely delighted with the Court of Appeal’s decision. This expensive waste of time for the government should serve as a wake up call that they cannot ride roughshod over the needs of the people.” She added, “The decision to dismiss the appeal also reaffirms the need for judicial review, a legal process by which the unlawful decisions of public bodies, including the government, can be challenged by the public.”

As the Guardian described it, Andy Burnham, the shadow health secretary, “described the decision as a humiliation for Hunt and said it raised major questions about his judgment.” He said the health secretary “had squandered thousands of pounds’ worth of taxpayers’ money ‘trying to protect his own pride and defend the indefensible'” by appealing against the High Court’s ruling in July, and “call[ed] for a commitment from Hunt that he would not try again to downgrade the hospital’s A&E services.”

Burnham said that Hunt was “diminished by this ruling and has let down the NHS.” He added, “The court has done an important public service today in standing up to an arrogant and high-handed government and a secretary of state who is trying to close A&Es across London in the middle of the worst A&E crisis in living memory.”

Although this is a victory that is well worth celebrating, the government’s response has been to add an outrageous last-minute amendment to the Care Bill for 2013-14, which, as Lewisham campaigner Jos Bell explained in an article for OpenDemocracy on October 17, will, “if it succeeds in making its way intact through the Lords and the Commons … mean quite simply that absolutely no English hospital will be safe.”

On OpenDemocracy today, NHS campaigner Caroline Molloy described the amendment as “a plan B that will make it far easier for them to close or downgrade other hospitals across the country in future, without the consent or support of local people or GPs,” adding that, if passed, it will “legalise much more widespread use of fast-track hospital closures.”

Molloy described how it will “allow the government to accept recommendations from Administrators appointed to take over clinically or financially struggling Trusts,” and, crucially, “to cut or downgrade nearby hospitals that are part of other Trusts” — a decision clearly influenced by the successful Lewisham campaign, and designed, cynically, to try and make sure that such resistance can never happen again. She added, “Closure decisions — which could be taken even where these nearby hospitals themselves are successful and popular — will be able to be taken with minimal public consultation — a mere 40 days, compared to the normal two years or more.”

As Jos Bell explained, “an extension from 30 to 40 days does not make it any less fast-track, compared to the years and extensive local consultation that normal hospital closures take. Nor is it clear which areas will then be all too briefly ‘consulted’ — or if the government will pay any attention to this then severely curtailed ‘consultation’, something Lewisham residents know all too well.”

Molloy also explained that, when health minister Earl Howe introduced the amendment in the Commons earlier this month, he admitted that it “drastically reduced ‘the statutory obligations of commissioners to involve and consult patients and the public in planning and making service changes’ and extended to even successful trusts an ‘accelerated process’ with ‘no provision for referral to local authority scrutiny’ or need to have regard to the views of local people and clinicians.”

Dr. David Nicholl, a consultant neurologist in Birmingham, who is on the council of the Royal College of Physicians, told Molloy that he could “see that this legislation has the potential to threaten any hospital, with minimal consultation.” As she put it, he “urged other medical professionals to raise concerns with their Royal Colleges,” and added, “it is vital any reconfigurations are clinically led. This judgment has shown that the special administrator approach is totally the wrong one.”

Molloy also noted that the Royal College of Physicians has raised concerns over the clause, writing in the Health Service Journal, “Any decisions affecting the broader health economy should be clinically-led, should be driven by the best interests of patients and should involve the wider health community from the beginning”.

Molloy also spoke to Vicky Penner of the Save Lewisham Hospital campaign, who, noting that the government’s proposals amounted to “unlimited geographical power without proper consultation,” which “means that no hospital in the country will be safe,” also stated, “It seems that if the Government cannot win in Court, they will bully their plans through Parliament, showing their utter contempt for normal people and democracy.”

The Care Bill — and the deadly amendment — will return to the House of Commons in November, and those who care about the future of the NHS are urged to contact their MPs to ask them to vote against the amendment.

In addition, as Jos Bell noted (and as I have written about repeatedly), the blame for the ongoing plans to inflict savage cuts on the NHS rests not just with the government, but is also the responsibility of senior NHS managers. She wrote, “Should we expect resistance from the Foundation Trusts themselves and the NHS establishment? Perhaps not. A letter penned just a couple of weeks earlier, by the NHS Confederation and the Foundation Trust Network, encourages Jeremy Hunt to take this very action and offers their expertise in writing an amendment.” She added that, to say that many people “have found this more shocking than the actions of the by now rather predictable government would be an understatement.”

In relation to particular plans for hospital downgrades, Caroline Molloy noted that 20 NHS trusts in total — responsible for over 60 hospitals — “are already so crippled by financial cuts and PFI debts that they have been identified as next in line for the Special Administration process.”

She added that, if the amendment is passed, these hospitals’ financial problems “could be used to justify closing NHS hospitals that belong to other Trusts nearby.” She also added an important point about the role that will almost certainly be played by PFI deals in any future proposals for hospital closures, drawing on the experience of the South London Healthcare Trust, which was burdened with outrageous PFI deals for two of its three hospitals. As she described it, “There are fears that the government intends to sacrifice successful hospitals without PFI debts, to keep the money flowing to the private investors behind the PFI deals, as they tried to do in Lewisham.”

While working to prevent the hospital closure amendment from being passed, campaigners for the NHS also need to keep an eye on the PFI problems up and down the country, which still threaten to lead to massive cuts in services for the many to protect the outrageous profits of the few.

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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