Judge rules cardiac review consultation unlawful

Mr Justice Owen this morning accepted part of the case brought by the Royal Brompton and Harefield Foundation Trust against the Joint Committee of Primary Care Trusts.

The judge ruled that respondents to the consultation into where England’s paediatric cardiac surgery services should be located could have come to a different conclusion had the exercise properly evaluated RBH’s research and innovation capability.

He said the failure to take this into account had “seriously distort[ed] the consultation process”.

The Evelina Children’s Hospital, part of Guy’s and St Thomas’ Foundation Trust, and Great Ormond Street Hospital Trust were rated higher in the consultation than RBH.

Mr Justice Owen said: “I recognise that when addressing the issue of which of the London centres are to be preferred, the consultation document identified reasons for preferring GOSH and the Evelina.

“[But] had RBH been scored equally with GOSH in relation to research and innovation, it would have been a legitimate line of thought for a consultee to have arrived at the conclusion that a three-London centre configuration was to be preferred.”

The JCPCT announced that it would appeal the decision but would consider holding another consultation if it looked like the legal process would take too long.

In a statement the body, set up specifically to decide the configuration of paediatric cardiac services, said that either way it would make a binding decision in the spring.

The judicial review is the first of its kind to be brought by a foundation trust objecting to a large-scale reconfiguration.

Royal Brompton and Harefield, based in west London, has said losing paediatric cardiac services would render it unviable.

Mr Justice Owen rejected RBH’s claim that the consultation had been pre-determined to conclude there should be only two centres in London.

Chair of the JCPCT Sir Neil McKay had said at a public meeting in February 2011: “We are open-minded about the outcome” and added in his witness statement to the court “I meant what I said, I am not a liar.”

Jeremy Glyde, the director of the review, and Hilary Thomas of KPMG, who did the options analysis, both testified there had been no pre-determination. Mr Justice Owen said he “emphatically reject[ed]” the argument that there had been.

The judge also rejected the issue of bias, alleged by RBHT because two members of a steering group appointed by the JCPCT were consultants at GOSH and the Evelina.

He said: “It is clear from the minutes of the meetings of the JCPCT and from the witness statement of Sir Neil McKay that it arrived at its decision as to its preferred options after a full and proper consideration of the material before it, and was not simply rubber stamping the recommendations of the steering group.”