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Why reconfiguration remains a difficult balance between commissioners and providers

The judicial process that saw a public consultation on children’s congenital heart services quashed following the Royal Brompton and Harefield Foundation Trust’s legal challenge has lessons for future NHS consultations, says David Mason.

Major reviews of NHS services are difficult and often controversial. Understandably, patients, local people and clinicians strongly support their local hospital and services. However, sometimes everyone needs to look beyond local interests to create national services that best meet the needs of all, no matter where they live. 

Changes to children’s congenital heart services are long overdue. The need was first identified by Sir Ian Kennedy on the back of his landmark inquiry into the unusual number of child deaths at Bristol Royal Infirmary in the 1980s. 

More than ten years on, there is universal support for change. Clinicians, the relevant royal colleges and professional associations and patient groups all agree that current services are not sustainable and put childrens’ lives at risk, if not now, then in the future. 

In March 2011, Safe and Sustainable launched a public consultation on the future of children’s congenital heart services, which included proposals to reduce the number of centres providing surgery from 11 to six or seven. The preferred option for London was to retain surgery at Great Ormond Street and the Evelina Children’s Hospitals, but not at the Royal Brompton Hospital.

The lawfulness of the consultation process was immediately challenged by the Royal Brompton and Harefield Foundation Trust, which launched judicial review proceedings. The court rejected all but one of the Brompton’s claims, but ruled that the consultation should be quashed on the basis of a technical legal point in relation to the method of scoring research submissions from the Brompton and the other current providers. 

What the court found

Allegations made by the Brompton and rejected by the court were:

  • That the consultation was a sham and “a classic backroom stitch-up”:

This was the heart of the Brompton’s challenge, but the judge found that the national Joint Committee of Primary Care Trusts (JCPCT) which is the decision making body  entered the consultation with an open mind and had a genuine commitment to consider all viable options. The judge held that it was perfectly legal for a consulting body to set out preferred options even though they may exclude one of the hospitals under review. He said “the JCPCT was entitled to identify and to consult upon its preferred options which did not include a three London centre model and which excluded the RBH”. 

  • Consultees had been misled about patient numbers in London:

The judge decided that it was reasonable for the JCPCT to exclude foreign private patients from calculations of future patient numbers on the grounds that this activity is unpredictable. He also rejected a challenge to the methodology used by the JCPCT to predict future caseloads at each of the London hospitals. It was entirely reasonable, he held, for the JCPCT to take into account intelligence about existing caseloads as a starting point, and he rejected claims that the JCPCT should assume in future that patient numbers would be divided equally between all London providers.

  • Allegations of bias by Steering Group members:

The Steering Group was a clinical advisory group comprising clinicians recommended by their professional bodies, and patient and NHS commissioner representatives. The Brompton allege that the steering group was a secret gathering of clinicians making clandestine decisions (although detailed minutes of these meetings were published on the web) and the JCPCT had been improperly influenced by it.  The judge rejected these claims. 

The judge also rejected allegations by the Brompton which sought to question the personal integrity of some of the well-regarded and respected doctors, and allege that fairness required that a representative from the Brompton was a member of the committee. The judge rejected all these criticisms and ruled that there was no bias nor the appearance of bias. 

  • The JCPCT had failed adequately to consider the impact of the proposals on respiratory and other services at RBH:

It was common ground that the paediatric intensive care unit (PICU) at RBH would close if the Brompton ceased to provide childrens’ heart surgery, because that service compromised almost 90 per cent of the unit’s workload.  That closure would impact on other patients.

The judge rejected this criticism, and commended Safe and Sustainable for convening an independent panel of national and independent experts chaired by Adrian Pollitt to advise on the continued viability of other services in the absence of a PICU.  This panel determined that respiratory services would remain viable. 

The judge commented that “the decision to constitute the Pollitt panel was an appropriate response to representations made by (the Brompton) and serves to demonstrate the manner in which the process of consultation can and should work”. 

In this context, it is interesting to note that the Brompton had not itself carried out any assessment on the impact of the loss of its PICU before proclaiming publicly that its loss would effectively close the hospital. 

The judge also ruled that the JCPCT was entitled to say that the impact of closure of the Brompton’s PICU would have a lesser impact on PICU services than if GOSH or the Evelina lost their paediatric cardiac surgical services, even though their PICUs would remain viable. 

While this might at first seem counter-intuitive, Safe and Sustainable had reached this conclusion after having advice from the Paediatric Intensive Care Society on how best to assess the impact on the national provision of PICU services.

The court upheld just one of the Brompton’s claims. It found that the process for assessing Brompton’s compliance with the standards relating to paediatric cardiac research and innovation was flawed. This was for a technical legal reason. 

The judge accepted the Brompton’s argument that an earlier document meant that the Brompton should have been allowed to submit further evidence on this point before this criterion was scored as part of the exercise for assessing consultation options. 

The judge did not, however, accept the Brompton’s other criticisms that Sir Ian Kennedy’s expert panel were not properly qualified to do this work. 

The judge then went on to say that this was unfair because he thought the Brompton would score more highly given the chance to put in more evidence. He accepted that even if the Brompton had got the maximum possible score, it would not have made a material difference to the options for consultation. It would not have undermined the JCPCT’s preference for GOSH and the Evelina because these two hospitals still scored higher than the Brompton against other criteria. 

Nevertheless, the judge took the view that a higher score for research and innovation might have led more consultees to favour three rather than two surgical centres in London.  There is no suggestion by the judge that any higher score would make consultees more likely to choose the Brompton if there were only to be two centres in London: indeed, the Brompton conceded that the other two hospitals had much stronger cases. 

The JCPCT has appealed the judge’s ruling both in relation to his findings against JCPCT process, and his decision that the consultation should be quashed as a result. The Court of Appeal has given leave for this appeal, on the basis that the appeal raises “arguable issues and the outcome of the appeal is of public importance.” 

The Brompton has cross-appealed, on every issue which it lost other than the judge’s ruling that there had been no pre-determination which is not being challenged. The Brompton did not require leave to make this cross-appeal. 

Next steps

The appeal and cross-appeal will be heard together in the week starting 19 March. If the judge’s decision is overturned, the JCPCT will move swiftly to make a decision that will lead to the improvements in care that are urgently needed. If the appeal fails, then there will have to be another full consultation. Whether consultees including those outside of London would be as influenced by the Brompton having a slightly higher score for research and innovation as the judge suggested, remains to be seen. 

From a strictly legal perspective, the decision by the Court of Appeal will have very valuable lessons for all future NHS consultations. Not only is this the first judicial review brought by one NHS body against another, it is the first legal challenge on NHS consultation launched before decisions are made to reach the Court of Appeal.  Lastly, the issues which the Court of Appeal has to consider are extremely wide-ranging with lessons to be learned by public bodies conducting consultations, not just the NHS. 

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