THE GOVERNMENT HAS LOST ITS APPEAL. WE HAVE WON OUR CAMPAIGN TO SAVE LEWISHAM HOSPITAL!
29 October 2013
Video by Stuart Monro of the day of the Appeal victory
We won our Judicial Review in July 2013, where the Government’s decision to close Lewisham Hospital was ruled to be unlawful.
We were confident that the Government would lose their appeal on this decision because they were using emergency legislation in an undemocratic way to close Lewisham Hospital – a GOOD hospital – without any consultation, and without any evidence to justify it. Today this appeal has been denied – we have won our campaign to save Lewisham Hospital.
It’s outrageous and undemocratic that the Government are now planning to change the law to allow them to do exactly the same thing they have been found guilty of in other NHS Trusts across the UK. If they pass that legislation in the House of Commons, the whole of the NHS will be at risk.
The Save Lewisham Hospital campaign is now committed to helping other campaigns to fight this taking place across our NHS.
See Press coverage here
GOVERNMENT vs. LEWISHAM COUNCIL & SAVE LEWISHAM HOSPITAL CAMPAIGN
COURT NOTES By Tony O’Sullivan (Day 1, Monday 28th October)
As most of us know, Lewisham Council and Our Save Lewisham Hospital Campaign took Jeremy Hunt, Sec of State for Health and Matthew Kershaw, TSA to Judicial Review (JR) in defence of Lewisham Hospital and we won on 31 July. Jeremy Hunt has not been man enough to recognise that the reason we won our JR victory was because he truly had acted unlawfully – ‘ultra vires’ (beyond his powers) – and had ignored the key views of the local GP Commissioners, Lewisham CCG and the community. So three weeks later at the eleventh hour he appealed August 21 and we were back at the High Court on 28th October.
Feeling very confident having seen that the Government arguments for the appeal were saying nothing new, we were not surprised, that Hunt’s team has tabled an amendment to the new Care Bill (in itself nothing to do with NHS reconfiguration whatsoever) to give himself the two crucial powers he lost the JR on. The amendment went through the House of Lords on 22 October. They are intending to accelerate its passage in the Commons. It allows a TSA in future to go into a trust in crisis and make decisions about any other trust the TSA sees fit. And the TSA can now IGNORE local CCG opinion about the service changes proposed if the TSA can claim that the relevant CCG is ‘outvoted’ by neighbouring CCGs. So how about that for a short lesson in democracy?
Day 1 in court essentially was such a re-run of July 2-4 that we could cut and paste court notes from then. However, this is the Court of Appeal, with Master of the Rolls, Lord Justice Dyson leading a bench of three Lord Justices, alongside LJ Sullivan and LJ Underhill. Trepidation began to dissipate as the Government line hit trouble from the start. It seems to me that the Appeal judges were incredulous at the Government argument relying on a meaning of the legislative phrase ‘in relation to the trust’ (ie South London Healthcare Trust) to ’empower’ the TSA to make changes in any other trust ie including Lewisham. The Govt team was asked, if that were so would it not imply changes could be made anywhere in the country. The barrister replied: ‘We dont shrink from that.’ The Govt barrister decided to ‘make the Court aware’ of the Government amendment passed through the Lords on 21 October. LJ Dyson replied: ‘It is of NO relevance’ to this court. Arguing against Lewisham CCG being the ‘local GP commissioners’ relevant to the decision on Lewisham, the Govt barrister was responded to by LJ Sullivan: ‘When it says GP Commissioners it means LOCAL commissioners’ and he said it would be ‘barmey’ if it meant otherwise. The judges seemed clear that Lewisham CCG are the local commissioners and the commissioners for the majority population affected.
For our joint defence, QC Elizabeth Laing, Lewisham Council’s barrister was excellent. She made clear the partnership between our two teams, Council and Campaign. She went through our main defence of the vires and local CCG point, first of ‘The Four Tests’, in clinical fashion! Back to court today to complete Laing’s submission followed by the Campaign’s barrister David Lock, briefed by Leigh Day Solicitors. I will report on events today in due course.
Government puts amendment to Care and Social Care Bill
The amendment would give Trust Special Administrators (TSAs) much greater powers when running NHS Trusts, and crucially would allow their decisions to change services arbitrarily in neighbouring Trusts.
To read a press statement from Save Lewisham Hospital lawyers, Leigh Day. Click here
Letter from Lord Howe re Amendment Click here
Open Democracy comment from Jos Bell Click here
Government lodge appeal against Lewisham judgement 22 August 2013
The Government yesterday (21 August 2013) confirmed that they will appeal the judgment in the High Court, handed down on 31 July 2013, that found that the Secretary of State for Health, Jeremy Hunt MP, had acted unlawfully in deciding to substantially cut services and close departments at Lewisham Hospital.
On the last day it could lodge its appeal, the Government lodged a formal application to take July’s judgment by Mr Justice Silber to the Court of Appeal.
Download press statement
Judgement from Judge Silber 31 July 2013
‘There are few issues which prompt such vociferous protest as attempts to reduce the services at a hospital which is highly regarded and which is much used by those who live in its neighbourhood. One such hospital is University Hospital Lewisham…’ (Judge Silber)
Download judgement in full
Letter from Matthew Kershaw to Secretary of State 2012.04
Click here to download
Brief synopsis of the 3 day hearing
The first day in the High Court for Save Lewisham Hospital Campaign and Lewisham Council’s judicial review challenge to Jeremy Hunt, Secretary of State, was very positive. Very good public presence outside: over 150 people. Judge Justice Silber agreed to a bigger courtroom to seat the gallery of campaigners 70-80 – the judge seemed to appreciate the reason for the disruption, as he ordered more chairs, delaying the start until all campaigners were seated. Very positive publicity was achieved in London newspapers and TV and radio and some national and international coverage also. overall a very good impact. Legal arguments on ultra vires (challenging Hunt on abuse of his powers in shutting down acute and full maternity services) from the Lewisham Council’s counsel dominated Day 1. Our barrister, David Lock QC, added to that strategy, but our main argument is Day 2 on the challenge around failure to meet the ‘Four Tests
Yesterday was Day 2 in the High Court, Royal Courts of Justice for the judicial review hearing of the challenges by Save Lewisham Hospital Campaign and Lewisham Council against Sec of State, Jeremy Hunt and TSA Matthew Kershaw. The JR applications seek to overturn the decision to close down Lewisham Hospital’s current well-respected acute, emergency and maternity services. Yesterday left the impression that the Government has one sole argument: that where the legislation allowing a TSA to be installed and make recommendations ‘in relation to THE trust’, and where people who understand English take ‘the trust’ to mean Sout London Healthcare NHS trust, the one in real financial difficulties, the Government wants the judge to rule that ‘in relation to the trust’ actually means in relation to any trust (ie Lewisham) and anything he thinks fit! Our legal teams battled with this deceit well. The rest of the day saw the launching of the Four Tests challenge by the Campaign’s team – Government guidance that the local CCG commissioners required to support reconfiguration had to be the LEAD COMMISSIONER FOR THE MAJORITY POPULATION AFFECTED BY THE MEASURES! So clearly, that is Lewisham CCG and it remains unanimously opposed to the TSA proposals and Hunt’s decisions. Such a strong point. Then, the failure to consult on children entirely, the failure to consult on the maternity option adopted, the lack of clinical evidence that would stand up to scrutiny, and the reduction in choice, especially for women came like blow after blow to the Government case. Day 3 today 4th July sees the final arguments, rebuttals and closing summaries. Keep daring to expect justice for Lewisham Hospital and our community
Today was the final day in the High Court, Royal Courts of Justice for this historic 3-day judicial review of the challenges by Save Lewisham Hospital Campaign and Lewisham Council against Secretary of State for Health, Jeremy Hunt and TSA Matthew Kershaw. This is the first time the TSA regime has been used and therefore the first time it has been abused. Hence the sense of history. The JR applications seek to overturn the decision to reduce Lewisham Hospital’s current well-respected acute, emergency and maternity services to a virtual walk-in Urgent Care Centre and midwife-led birth centre with reduced safety because of the loss of obstetric and emergency back-up on site.
A dramatic back-drop was NHS London’s announcement – strangely coinciding with the final day of our challenge – that they intend to close 9 A&Es from London’s 29 current A&Es over the next 5-6 years.
The highlight today was the amazingly weak legal defence of why the Government need not pay regard to the 4 Tests commitment repeatedly given by the PM and Secretary of State specifically on Lewisham: that services would not be diminished or closed unless the 4 Tests were met (local GP commissioning support, clinical evidence to justify service changes, enhanced consultation of public and patients and justification for any impact on patient choice). The TSA proposals SO do not meet the 4 Tests, despite Professor Sir Bruce Keogh giving Hunt cover by saying they did, that Government QC had to argue that the Secretary of State should not be ‘fettered’ by having to keep his promises anyway. Even more tortuous in logic, the QC – clearly in desperation – claimed that final decisions on children’s closures and a half-baked invention of a paediatric urgent care centre – none of which had featured because the TSA ‘forgot’ 63,000 children in Lewisham (300,000 in the whole of south east London) throughout the McKinsey work and consultation – were proof that consultation had been successful. (?) And the same logic was used for the appearance from nowhere of the unsafe, unwanted maternity decision which had not been consulted on: again proof of how the TSA had responded to consultation. (Sorry, I can’t understand that either.)
As a mere health worker in the audience, I felt we had proven that the TSA and Secretary of State both were acting ‘ultra vires’ – beyond their legal powers – and that the 4 Tests were certainly not met. And saving the best till last, Government guidance on the 4 Tests was quoted: it defines the need for local GP commissioning support as backing from the lead commissioner/CCG for the majority population affected by the service changes – absolutely clear that this means Lewisham CCG for Lewisham people threatened with loss of Lewisham Hospital. This cuts across TSA Kershaw’s deception where he claimed he could take the majority view of 6 other CCGs ‘out voting’ Lewisham.
The ‘4 Tests’ was a real challenge to the Government side: the QC was unsure whether he could answer the judge as to whether and when the Secretary of State could or should respect these tests – an embarrassing urgent consultation described as a ‘car crash’. We hope that Judge Justice Silber will see the integrity of these and other arguments from our combined challenges and set aside Hunt’s decision to undermine the excellence of Lewisham Hospital by closing essential services.
At the close I felt extremely proud of our legal team, our community, our hospital and our campaign.
Those attending the Royal Courts of Justice and available to interview from 9:30am on Tuesday 2 July include the following:
- Richard Stein from Leigh Day – 07976 780 305
- Rosa Curling from Leigh Day – 07766 053068
- Louise Irvine, GP and Chair of SLH – 07922 277395
- Vicky Penner, mum of three and patient – 07770 941337
- Tony O’Sullivan, Director of Paediatric Services, Lewisham Hospital- 07973 137345
- John O’Donohue, Consultant at hospital – 07711 720200
- Jos Bell, patient – 07977 090972