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Court of Appeal refuses council and claimants permission for appeal over Kent stroke services reconfiguration

The Court of Appeal has refused permission to appeal a High Court ruling dismissing a judicial review challenge to a stroke services review in Kent.

In March this year Medway Council announced it would be lodging an appeal against Mrs Justice Farbey’s decision which found that a joint committee of clinical commissioning groups had acted lawfully when dealing with health inequalities when they decided the locations of three hyper acute stroke units (HASUs) in Kent.

The joint committee decided in December 2019, following a review of stroke services and a public consultation, to establish the three HASUs at Darent Valley Hospital, Maidstone Hospital and William Harvey Hospital.

Under the plans the stroke unit at the Queen Elizabeth the Queen Mother in Thanet will not become a HASU and so will close.

The joint committee’s decision was upheld by the High Court on 21 February this year.

In A & Anor, R (On the Application Of) v South Kent Coastal CCG & Ors [2020] EWHC 372 Mrs Justice Farbey gave permission for two out of the eight grounds of challenge advanced by the claimants.

These were that the defendant CCGs misunderstood or failed to discharge the health inequality duty under section 14T of the National Health Service Act 2006 (ground 1) and the consultation was unlawful (ground 5).

However, Mrs Justice Farbey went on to dismiss the claim.

Kent and Medway CCG this week (25 August) received notification from the Court of Appeal that permission had been refused for an appeal.

“This decision draws a line under the legal process challenging the decision to implement three hyper acute stroke units in Kent and Medway, and brings the NHS closer to being able to make improvements to services that will save lives and reduce disability from stroke,” it said.

Lord Justice Phillips, considering the application for appeal, ruled that there were no permissible grounds for an appeal against the judicial review ruling made by Mrs Justice Farbey.

Rachel Jones, Executive Director of Strategy and Population Health at NHS Kent and Medway Clinical Commissioning Group, said: “I am extremely pleased about the decision from the Court of Appeal. The original judicial review ruling found emphatically in favour of the NHS and the process we followed. The need to improve stroke services in Kent and Medway is as urgent as ever and this decision brings us closer to being able to move forward with the implementation of evidenced-based hyper acute stroke units, which will in turn reduce death and disability from stroke.”

The Kent and Medway Stroke Programme is still awaiting the decision from the Secretary of State on the referral for an independent review of the process.

The CCG said it hoped that this could now be expedited.

Cllr Alan Jarrett, Leader of Medway Council, said: “I am extremely disappointed by the Court of Appeal’s decision to refuse permission to allow our appeal against reconfigured services not including a hyper acute stroke unit (HASU) being located at Medway Maritime Hospital.

“My colleagues and I are committed to ensuring the very highest quality health services for our residents. After continually voicing our concerns about the impact of the location of the new stroke units, we took action to ensure health colleagues were held to account for the decisions they had made.”

Cllr Jarrett added: “We launched our appeal against the High Court’s decision to find that the Joint Committee of CCGs had acted lawfully, as we believed, and continue to believe, that both the Joint CCG committee and the High Court have failed to consider health inequalities appropriately when making their decision.

“In light of this disappointing decision by the Court of Appeal, we still await the verdict of the Secretary of State after our referral of this matter to him for consideration. I, together with Medway’s three MPs, will continue to fight for the retention of this life saving service here in Medway.”

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