High Court to hear first JR brought by one NHS body against another

A High Court judge will this week hear arguments in what is understood to be the first judicial review action brought by one NHS organisation against another.

The Royal Brompton & Harefield NHS Foundation Trust is challenging the outcome of the Safe and Sustainable consultation on the future of children’s heart surgery.

The consultation recommended to the Joint Committee of Primary Care Trusts, the relevant decision-making body, that Great Ormond Street Hospital and Evelina Children’s Hospital be chosen as the two children’s heart surgery centres in London.

The Royal Brompton will argue that the consultation was flawed in a number of ways. These include:

• The decision to reduce the number of children’s heart surgery centres in London from three to two “did not stand up to scrutiny and was not transparent”. The Trust said the decision was “based on the perception that London had to ‘share the pain’ of closure, to show willing to other centres around the country, and was not based on clinical evidence”
• The decision on which two centres were to keep children’s heart surgery was made by a committee that included doctors from each of the two centres which, it was decided, kept their surgery. Royal Brompton said both were active in the decision-making process, while it had no representation
• The decision to reject Royal Brompton was made on the basis of a supposed weakness in its research, “despite the fact that a national assessment showed it to be the premier centre for cardiac research in the country”
• The Safe and Sustainable steering group set criteria, “and then ignored them when considering Royal Brompton’s fate”. The Trust insisted that it fulfilled the criteria, with four surgeons undertaking over 400 procedures each year. “It is the third largest centre for children’s heart surgery in the country, with very low mortality rates and an international reputation,” it added
• The review panel “requested information on, and then ignored the disastrous effects on other NHS services at Royal Brompton if children’s heart surgery were to be withdrawn”. In its submissions the Trust warned that the removal of paediatric cardiac services would “render the PICU (paediatric intensive care unit) completely unworkable, in turn removing an essential underpinning for our paediatric respiratory services for patients with diseases such as cystic fibrosis and DMD".

Bob Bell, Royal Brompton’s, said: "We remain firm in our view that the public consultation on plans to end children’s heart surgery at Royal Brompton was unlawful. Our decision to take legal action has been taken with deep regret. But the gravity of the consequences for patients of this deeply flawed consultation process, left us no other option."

But Teresa Moss, Director of the National Specialised Commissioning Team, said the Safe and Sustainable team did not accept the allegations made by the Royal Brompton.

“We will present our own case later this week when we provide evidence in court demonstrating that the principles and processes of the review are robust,” she said.

Moss claimed that the recent public consultation showed there was widespread support for the Safe and Sustainable proposals.

“Independent experts have challenged the allegations from the hospital; the international panel found that the hospital’s respiratory services would remain viable in the absence of a paediatric intensive care unit,” she added.

“This is the first time that one NHS organisation has taken a legal case against another NHS organisation. Many people will quite frankly find it astonishing that taxpayers’ money is being used so inappropriately at a time of financial austerity in the health service.”

The Royal Brompton was granted permission for a judicial review by Mr Justice Burnett on 15 July 2011.

Philip Hoult