Rare Good News for the NHS: Government Accepts Lords Amendment Removing Hospital Closure Clause from Care Bill

Last week there was some rare good news about the NHS, which I’m posting belatedly because I was too busy last week, and also because I want to make sure that my approval is on record. I’m also posting it because, let’s face it, those of us who care about social justice have few victories to cheer about.

The victory in question was the government’s acceptance of an amendment to Clause 119 of the Care BIll — generally known as the “hospital closure clause” — which is designed to prevent neighbouring hospitals to those facing grave financial difficulties from having their services cut without local consultation.

The circumstances in which this would have occurred involved hospitals close to those subjected to the appointment of a special administrator because of severe financial problems — under the Unsustainable Providers Regime that was first launched in south east London in October 2012. In that case, the Trust Special Administrator, Matthew Kershaw, proposed savagely cutting services at Lewisham Hospital to help pay off the debts of a neighbouring, but otherwise unrelated trust, the South London Healthcare Trust, which had hospitals in the boroughs of Greenwich, Bexley and Bromley.

Under Kershaw’s plans, Lewisham’s A&E Department would have closed down, leaving just one hospital, in Woolwich, to deal with the medical emergencies of the 750,000 inhabitants of three London boroughs, Lewisham, Greenwich and Bexley, and many other acute frontline services would also have been axed, so that, for example, 90% of expectant mothers in Lewisham (with a population of 270,000 people) would have been unable to give birth in the borough.

This underhand attempt to make Lewisham pay for another trust’s financial problems prompted widespread outrage in Lewisham, where a huge grassroots campaign developed to save the hospital, which, at one point, saw 25,000 people marching through the borough to express their contempt for the Trust Special Administrator programme.

Despite this, health secretary Jeremy Hunt approved Matthew Kershaw’s plans in January 2013, but the Save Lewisham Hospital Campaign and Lewisham Council then launched judicial reviews, which, in July, concluded that Jeremy Hunt had acted unlawfully when he approved Matthew Kershaw’s plans. Hunt then appealed, but lost the appeal in October.

Almost immediately, however, the government responded, spitefully, by adding a clause to the care bill — Clause 118, later Clause 119 — which would, in future, allow Trust Special Administrators to get away with what they couldn’t get away with in Lewisham. As I explained at the time:

On OpenDemocracy … NHS campaigner Caroline Molloy described the amendment [the clause] 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.”

Despite opposition to the clause, MPs voted for it by 297 votes to 239 on March 11. The campaigning group 38 Degrees, which organised a petition signed by 180,000 people — in addition to a petition launched by Louise Irvine, the chair of the Save Lewisham Hospital Campaign, which secured nearly 150,000 signatures — noted that the Liberal Democrat MP and former health minister Paul Burstow had “tabled an amendment which aimed to remove the worst parts of the clause,” and which “was drafted by lawyers funded by 38 Degrees members,” but that Burstow “decided to withdraw his support for the amendment at the last minute after the government offered some concessions.”

Those concessions, however, were not enough to prevent campaigners for the NHS — including 38 Degrees and the Save Lewisham Hospital Campaign — from continuing to oppose the implementation of Clause 119. The focus shifted to the House of Lords, where a vote was scheduled for May 7, and where Baroness Finlay, a doctor and a cross-bench peer, tabled an amendment proposing that, “Where the administrator is considering recommending taking action in relation to another NHS foundation trust or an NHS trust which may become an affected trust, the administrator shall engage with the commissioners of services at any such NHS foundation trust or NHS trust in order to enable those commissioners to make decisions” affecting their own hospital or hospitals.

On May 7, as 38 Degrees announced, there was “[s]ome very, very good news.” As the campaigning group explained, “We did it! The government has accepted our amendment to the hospital closure clause in the House of Lords.”

They added, “The clause was due to be passed today. So the government’s decision to accept — almost word for word — the changes proposed by lawyers funded by 38 Degrees members came right down to the wire — and it was a big surprise.”

David Lock QC, a lawyer with expertise in the NHS, checked the government’s changes and said, “This is a very satisfying outcome. It recognises the compelling logic of the position taken by 38 Degrees members,” as well as other campaigners,  including the Save Lewisham Hospital Campaign.

Responding to the news, Baroness Finlay said, “I am delighted that the Government have recognised the need for equity and the importance of safeguarding good patient services in a population.”

Writing about the government’s decision, Health Service Journal noted that the Finlay amendment “was adopted and re-drafted by the government, before being introduced as its own amendment to the bill,” which pleased Baroness Finlay. “I was delighted that the government wrote their own amendment because they recognised the need for commissioners to be on an equal footing to safeguard essential services,” she said, adding, “It’s excellent that the government has recognised the importance to give parity to all the commissioners of services and that the guidance will be drawn up independently under the Chairmanship of Paul Burstow.”

HSJ also noted that, although the Labour peer Philip Hunt “welcomed the amendment,” he was “concerned that the TSA regime may still be misused.” He told the journal, “We remain concerned that this can still be used in such a way that it’s a back door way to reconfiguration without proper public consultation.”

On OpenDemocracy, Becky Jarvis of 38 Degrees provided a more detailed explanation of what was at stake with Clause 119, and the safeguards provided in the Finlay Amendment.

As she explained:

This new amendment [43A] seeks to address widespread concerns that have been raised by a variety of groups about the original clause. The amendment seeks to alter the “failure regime” when a hospital trust is in financial trouble, to ensure that the local clinical commissioning group (CCG) has an appropriate say in how solutions are arrived at. Under the Finlay amendment, where a Trust Special Administrator (“TSA”) is appointed, the TSA would treat all commissioners of NHS services equally. The present clause penalises important co-operation between commissioners and providers, and gives a veto to the struggling or indebted commissioners. This inequality is indefensible.  Why should successful commissioners, who have worked well with their local NHS trusts and NHS foundation trusts to produce a sustainable set of NHS services, be prejudiced by struggling commissioners and providers in a neighbouring area?

The Finlay amendment removes the unfair preferential position of the commissioners of NHS services of the Trust which is in administration. The original clause only gave this right to the CCG in the narrow area of the hospital whose financial difficulties triggered the “failure regime”.

Secondly, it clarifies that if the Trust Special Administration (TSA) recommends changes at a neighbouring Trust which is not in special administration (as happened with Lewisham Hospital), the final decision-maker should be the CCG in the area affected — not the Administrators or the Government. Where the Administrator recommends that changes are made at financially and clinically successful hospitals (i.e. those not in administration), those decisions will continue to be taken by local NHS commissioners. It takes away the right of the Administrator to impose changes at hospitals other than the Trust which is in administration.

If this solution had been in place when the decision to change services at Lewisham was made, proposals to shut the maternity and A&E unit could only have proceeded with the support of Lewisham Clinical Commissioning Group.

Congratulations to everyone who worked on this. As I mentioned above, victories on issues that are crucial for ordinary people — like hospital closures and the axing of services — are rare, so we should take a moment to celebrate — before the next challenge arises.

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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