Stafford and Lewisham

Health Law

When the initial Trust Special Administrator recommendations for South London were made public there was an immediate chorus (of which I was part) which just said – he can’t do that. It was “obvious” that the TSA had no power to interfere in the service configuration of a trust, Lewisham, which was not under his control.  The Judicial Review by Lewisham Council on this point succeeded, and allowed the Judge to quash the decision – the Council should be congratulated for their intervention.

The case appears to have made clear that there are limits to the extent to which services can be reconfigured without going through the proper, albeit lengthy, reconfiguration process, with the Lansley 4 tests (including GP support) and the other steps, including extensive consultation and both Gateway and National Clinical Advisory Team  Reviews; and with potential for reference through the Local Authority to the Independent Reconfiguration Panel.

The law is now different and in the case of Mid. Staffs, which is a Foundation Trust, we have involvement of the regulator Monitor.  But the principle should still apply; you cannot evade proper process unless the statute very specifically spells this out.

With Mid. Staffs the TSA is recommending that the trust be wound up and its assets and staff split between other bodies.  That power is certainly there.  Now here is the “but”.  The TSA is also recommending changes to the configuration of services, in particular removing some services from Stafford Hospital.  The intention is to consult over these proposals but not through the usual reconfiguration process.  Can he do that?  Well I think there will be a strong case to argue – no.  The TSA appointment to a Trust cannot be used as a back door short cut to avoid the proper reconfiguration process.

The TSA might argue that the consultation over the next few weeks, plus all the work already done, was enough to satisfy the requirements even if the actual guidance and procedure had not been followed.  But this approach was tested by the Judge in the Lewisham Judicial Review and did not get much sympathy.  Who knows.

The approach with Stafford (and the approach with Lewisham) should have been based on making organisational changes first with various transfers then reconfiguration of services under the newly formed governance structures.  The TSA should bring about the transfer of assets and staff but any reconfiguration of services should still have to go through the full proper process, involving the newly formed bodies but led by commissioners.  That may take time and be difficult but it is right and legal.  Let’s face it, with both South London and Stafford the various authorities have been faffing about for years anyway – this time we ought to be able to take time and get it right.

And as a footnote yet again at attempt to bring about service reconfiguration has collapsed since those leading it (and their highly paid advisors) have failed in process – when is there going to be some comeback for all the waste of time and resource that implies?