‘Supported by independent analysis, the Council believes that the problem has not been framed correctly. The regime for unsustainable providers was designed to remedy failing hospitals. It was not designed to establish in fine detail the health care needs of a given population. It is acknowledged that changes are required for acute health care to be organised effectively in south east London. However, such changes need to start with the needs of the population of south east London and not the financial and productivity needs of the health care providers. Throughout his draft report, the TSA has adopted a strict provider focus and failed to take into account or assess any impact of his recommendations on the local population or the extent to which these changes destabilise other local systems and processes.’
Council threatens judicial review
- 8.5 However, the way in which the draft report is expressed indicates that there may be a risk, and the Council puts it no higher than that, that the TSA will make ultra vires recommendations to the Secretary of State, and the Secretary of State may purport to implement those. The Council makes clear now that if the Secretary of State does makes a decision, without further consultation or public involvement, to implement draft recommendations of the TSA (if any) which do affect other NHS bodies, the Council will have to consider whether or not to apply for judicial review of that decision.
- 8.6 Such an application would, for reasons similar to those given by the Court of Appeal in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts  EWCA Civ 472, be wholly premature at this stage. First, the Secretary of State, not the TSA, is the decision maker under Chapter 5A of the 2006 Act; and second, it is entirely possible that the TSA will not, in his final report, make any recommendations to the Secretary of State which are ultra vires. Indeed, it is to foreclose this risk that the Council is responding, now, to the TSA’s offer to consult, and drawing the TSA’s attention to this point
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