Recent News
Safe and Sustainable Judicial Review verdict
Monday, 7th November 2011
Reaction to the ruling by Sir Neil McKay, Chair of the JCPCT
I am disappointed that the Judge decided to quash the consultation on an obscure technical point that had no material bearing on the JCPCT’s choice of consultation options. We respectfully intend to appeal the Judge’s decision based on his misunderstanding of the review process.
I am very sorry for the delay that this ruling may bring to the process of review given the continued anxiety and frustration amongst parents of children with congenital heart disease across the country and NHS staff working in the surgical centres. I would like to provide an absolute reassurance that the work of the JCPCT will continue and that a final decision on the future configuration of services will be made in the Spring of 2012.
I am, however, pleased that the Judge rejected most of the grounds on which the RBH based their claim. Our responses to the Judge’s verdict are set out below and I would like to take this opportunity to explain how Safe and Sustainable will continue the process for reaching a decision in 2012.
The Judge rejected the following claims put forward by RBH:
Pre determination and Irrationality
RBH claimed that the JCPCT had secretly decided that there would be only two surgical centres in London as far back as 2010 and that as such the public consultation was a sham. RBH also claimed that the JCPCT’s preference for two centres in London was ‘irrational’.
The Judge rejected these claims and found that the JCPCT had entered consultation with an open mind and had clearly demonstrated a genuine commitment to consider all viable options before a final decision is made. The Judge also said “the JCPCT was entitled to identify and to consult upon its preferred options which did not include a three London centre model and which excluded the RBH”.
In making an accusation of pre-determination (including an accusation in legal documents that this was a ‘classic back room stitch up’) the RBH was making serious allegations of impropriety against all of the JCPCT members, members of the Steering Group including respected children’s doctors, the secretariat and others. This was particularly offensive and I call upon Mr Bob Bell, the RBH Chief Executive, to apologise in public on behalf of his Board.
Misinformation
The Judge rejected claims that the consultation document was fundamentally flawed and had misled the public. Specifically, the Judge rejected claims that the exclusion of foreign private-funded patients from the JCPCT’s deliberations had disadvantaged the RBH or had misled the public.
Impact to paediatric respiratory services at RBH
In witness statements RBH clinicians told the Court that respiratory services for children at RBH would have to “close” and that they were in “little doubt” that the RBH “would be unable to survive as a hospital”. Similarly the RBH Chief Executive, Bob Bell, told the Court that “closure would be inevitable” for respiratory services were RBH to lose paediatric cardiac surgery.
The Judge rejected these claims by finding that the JCPCT had properly considered the impact to paediatric respiratory services at RBH. The Judge absolutely rejected the suggestion that “something had gone wrong” with the process as RBH had claimed and praised the JCPCT for convening the independent panel of respiratory experts chaired by Adrian Pollitt. He said “the decision to constitute the Pollitt panel was an appropriate response to representations made by RBH and serves to demonstrate the manner in which the process of consultation can and should work”.
The Judge acknowledged that “the panel concluded that all respiratory services would remain viable; that the great majority of paediatric respiratory activity would continue to take place at RBH; but that arrangements would need to be put in place for some rare and complex cases”.
I recognise that the Safe and Sustainable proposals, if implemented, would have an impact on a small number of children with respiratory problems, and NHS commissioners in London will work closely with patients and their representatives and relevant hospitals to ensure this small group of patients would continue to receive high quality specialist care, regardless of which hospital they visit. It should be remembered that the benefits of collaborative working to provide care for respiratory patients were highlighted in a joint 2009 report between the RBH and Great Ormond Street Hospital for Children.
Bias and role of the Steering Group
RBH had claimed that senior clinicians from Great Ormond Street Hospital for Children and the Evelina Children’s Hospital, who sit on the Safe and Sustainable Steering Group, were actively biased against RBH. The RBH had also claimed that the Steering Group was a secret gathering of clinicians making clandestine decisions and that the JCPCT had been improperly influenced by the Steering Group. The Judge rejected these strange claims and found that the Steering Group had provided objective advice on relevant clinical issues in accordance with the group’s terms of reference and that the JCPCT – as the true decision making body -had properly considered this advice.
It is particularly disappointing that RBH sought to undermine the review process by questioning the personal integrity of highly regarded and respected children’s heart doctors who work in London hospitals often in partnership with clinicians at RBH.
The finding against the JCPCT: score for ‘research and innovation’
Of all the claims made by RBH against the JCPCT, the Judge upheld only one. The Judge found that the JCPCT’s process for assessing the RBH’s compliance with the standards relating to ‘research and innovation’ (which was found to be ‘poor’) was flawed.
We respectfully disagree with this finding, and it is particularly disappointing that the Judge upheld this claim as he conceded that the sub-score for ‘research and innovation’ had no material bearing on the JCPCT’s choice of consultation options. The Judge acknowledged that even had RBH been awarded the maximum possible sub-score for ‘research and innovation’ it would not have altered the JCPCT’s preference for Great Ormond Street Hospital and Evelina Children’s Hospital as these two hospitals would have still scored higher than RBH against the other criteria.
The Judge said that “if at this stage the RBH Trust had been scored the same as GOSH for ‘research and innovation’ its total score on the inter London centre scoring would have been 303, as against 347 for GOSH and 364 for the Evelina”.
So why did the Judge make this ruling? Well,75% of respondents to public consultation agreed with the JCPCT’s preference for two centres in London. But the Judge suggested that had RBH been given a higher sub-score for ‘research and innovation’ then fewer people across the country may have agreed with two centres and more may have instead opted for three centres in London.
On this basis alone, the Judge decided to quash the consultation.
What happens next?
The JCPCT met on 25 October to begin to consider the outcome of consultation, including consideration of new options proposed during consultation.
Safe and Sustainable and the work of the JCPCT continues with the objective of making a final decision as soon as possible in 2012. The JCPCT will meet as planned on 8 November, 17 November and 14 December 2011.
We respectfully do not agree with the Judge’s conclusion that the consultation was unlawful. I believe that the 75,000 respondents to consultation and the three-quarter of a million people who signed petitions should be heard and their views taken into account. I am genuinely saddened that this court action has delayed a process that will deliver vital changes needed to improve outcomes for children across the country. We are therefore preparing for the process to appeal the court's decision.
But I am aware of the need to conclude the review in a reasonable timeframe given the anxiety and frustration that the ongoing uncertainty brings to parents and NHS staff across the country. So, at the same time as preparing for an appeal I have today written to the Chief Executives of all the surgical centres inviting them, if they so wish, to re-submit fresh evidence relating to their ability to meet the standards relevant to ‘research and innovation’. I will ask Sir Ian Kennedy’s panel to consider the new evidence in December and to advise the JCPCT on whether the centres’ scores for research and innovation should be changed.
Should it prove necessary these new scores, if any, will be taken into account by the JCPCT when it meets to identify a preferred configuration option.
There are two alternative scenarios that explain how the JCPCT will reach a decision:
If the JCPCT is successful on appeal
The JCPCT will make a final decision on the preferred option at a meeting in public. The date of the meeting in public will be published once the appeal is heard (but may not be on 14 December as planned given the court time table).
If the JCPCT is not successful on appeal
OR
the JCPCT decides to hold a further public consultation because an appeal would take too long
The JCPCT will hold a meeting in public – probably in the new year - to identify a preferred option (including a consideration of new options and new evidence around research and innovation) and will then put the preferred option – and other options – back out for public consultation before making a final decision at a further meeting in public.
In any event, the JCPCT plans to make a final binding decision by Spring 2012 at the latest.
Jeremy Glyde, Safe and Sustainable Programme Director said:
““The case for change has never been stronger. We need fewer, larger centres carrying out children’s heart surgery. We need hospitals to work collaboratively in the interests of patients, not themselves. The results of the public consultation earlier this year show there is significant support for the principles of the review and the national quality standards. Expert clinicians, professional bodies and national heart charities all agree that change is long overdue.
“Members of the Joint Committee of Primary Care Trusts will meet tomorrow, again later in November and in December to continue the process for change. We stand ready to make a decision by the Spring of 2012 at the latest”.
