STRUCTURE: The joint council of primary care trusts, set up by the Department of Health to review paediatric surgery, has won the right to appeal a judge’s decision that its consultation last year was unlawful.

The joint council was this week granted leave to appeal the decision made in November by Mr Justice Owen at the High Court.

The judge quashed the national consultation into the reconfiguration of paediatric cardiac services, ruling it was conducted unlawfully.

No date has yet been set for the appeal hearing but it is due before before April 4.

In November Mr Justice Owen accepted one part of the case brought by the trust.

He 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 specialist heart and lung trust won the right to take the consultation to judicial review last July. A case study appear on last week.

Responding to the news that the joint council had won the right to appeal the decision a spokeswoman for Royal Brompton said: “We could not, and will not, sit back and watch while flawed plans to dismantle high quality, specialist children’s services are drawn up behind closed doors, plans that will have a harmful effect on patient care.

“This will be our third visit to the High Court over this consultation. Had Sir Neil McKay [who led the review] listened to our concerns and acted upon them back in February – the need to use legal challenge could have been avoided.

“The number of paediatric cardiac surgery patients in London and the south east warrants a paediatric network system, comprising the three current outstanding centres, each of which offers a different but complementary model of care, admired in many parts of the world.”