Lawyers advised a cash-strapped foundation trust wanting to close a community hospital that it could bypass public consultation by “running down” the service on “efficiency” grounds.

Documents obtained by HSJ about the closure of Wesham Hospital, in Lancashire, could fuel concerns that hard pressed NHS organisations are pushing through closures without the public engagement demanded in health secretary Andrew Lansley’s four “tests” of service reconfiguration.

Blackpool Teaching Hospitals Foundation Trust closed the 40 bed rehabilitation unit on 26 January, as part of a package of emergency moves to restore the organisation to “financial stability”.

It told councillors the move was an “interim transfer” of the services to another hospital, and that the future of Wesham would be determined by consultation later this year.

But using the Freedom of Information Act, HSJ has obtained the legal advice sought by the trust after it decided to close the hospital.

In a letter dated 19 January, Sheila Bennett, a partner at law firm Hempsons, stated that the trust had asked her for confirmation of its legal position if it were to transfer all or part of the hospital’s services without undertaking public consultation. The last four words were in bold and underlined.

She said there had been several high profile cases where services at hospitals under threat of closure but subject to “formal consultation exercises” had been “effectively run down” in the “intervening planning/consultation period” on the basis of “arguments of efficiency, restructuring the workforce and reducing the cost base”.

Ms Bennett’s letter gave three examples, one in the North East, one in the South West and one in Wales.

The letter, addressed to Blackpool’s claims manager Valerie Milligan, advised the trust to “proceed” with this option “but coupled with a consultation exercise”, which could be for a “reduced” period rather than the usual 12 weeks. The exercise would help to reduce the threat of judicial review or adverse publicity, it said. 

Ms Bennett told Ms Milligan: “Pure financial considerations (as mentioned in your email) to justify the proposed service rationalisation are not enough.”

Blackpool took the decision to close Wesham at an emergency board meeting on 6 January. It had been found in “significant breach” of its terms of authorisation by regulator Monitor in November 2010, and was £6.6m in deficit by the end of that month.

There was no reference in the legal advice to the trust of the closure of Wesham being a temporary measure.

Blackpool Teaching Hospitals chief executive Aidan Kehoe said in a statement the closure was a “short term measure pending the full public consultation later in the year”.

He stressed the changes had “not resulted in any reduction in service whatsoever”.