Royal Brompton wins right to take 'flawed' consultation process to a judicial review

Royal Brompton and Harefield brought proceedings in the High Court against the Joint Committee of Primary Care Trusts over the latter’s consultation on the future of England’s paediatric cardiac services.

The Safe and Sustainable review it produced in February excluded Royal Brompton from the list of trusts who could provide the service in the future.

The trust was today told by Mr Justice Burnett at the Queen’s Bench Division Court it could proceed to a full judicial review later in the year.

The joint committee’s pre-consultation business case included four options for the future configuration of services, all of which listed only two trusts in London that could perform paediatric cardiac care: the Evelina Hospital, part of Guy’s and St Thomas’ Foundation Trust, and Great Ormond Street Hospital.

Royal Brompton has said since February that losing paediatric cardiac work would render other service lines in the trust unviable.

The trust said the options the joint committee put forward were “fundamentally flawed, such that a consultation based on them is unlawful”.

Trust chief executive Bob Bell said: “We have always supported the principle that all babies and children who undergo heart surgery deserve the best possible care, but decisions about the future of such vital services have to be made on the basis of sound, objective evidence, and the decision-making process must, of course, be entirely transparent.

“These conditions were not met by those responsible for this review, and it is with regret that we find ourselves having to take legal action to ensure that the grave inadequacies of their approach are heard in a court of law.

“While we are pleased that Mr Justice Burnett has granted permission for a full judicial review to take place, it is a great shame that the JCPCT did not listen to our concerns in February. Had they agreed to meet us then to discuss the flaws we had discovered, we would undoubtedly not be in this position today.”

The trust’s skeleton argument, submitted to the court, said the joint committee informally delegated the selection of the two London sites to a “steering group” - two of whom were employed by Great Ormond Street or Guy’s, while another was “closely associated” with Guy’s.

The legal document said: “The evidence shows, to say the least, a real possibility of bias in the drawing up of the recommended options and suggests that the issue of two London centres, instead of three (and which two centres those should be), has already been determined, leaving the other two centres as winners and the Royal Brompton as the spectacular loser.”

The review was started after the concerns about the quality of care in paediatric cardiac services and the introduction to the consultation document said the reduction from 11 to six or seven hospitals nationally was made “in the belief that only larger surgical centres can achieve true quality and excellence.”

Responding to the decision Jeremy Glyde, programme director for Safe and Sustainable, said: “We welcome the fact that the Royal Brompton Hospital has failed in its attempt to halt the Safe and Sustainable process - just as it failed several months ago to halt the public consultation.”

He said: “Mr Justice Burnett said that he had concluded ‘with some hesitation’ that the Royal Brompton Hospital had ‘an arguable case’. There will be a full hearing in late September. Safe and Sustainable welcomes the opportunity to present its evidence and will do so robustly. The rationale for change is supported by medical experts, professional associations and leading national heart charities.

“Pooling expertise will help the NHS make further improvements to patient outcomes and deliver a truly excellent service. The consultation included a recommendation for two children’s heart surgery centres in London – not three – and consultees were asked to indicate a preference for three London sites instead of two and to indicate a preference for the Royal Brompton Hospital rather than the other two London hospitals.

“Today’s developments mean that Safe and Sustainable’s timetable for reaching a decision on the future of children’s congenital heart services remains on track. Subject to the outcome of the hearing in September, the Joint Committee of Primary Care Trusts will meet in public in November as planned.”