Grounds for legal action if hospital downgrade approved, critics claim

Today’s HSJ Local Briefing has been told there are at least two strong grounds for launching legal action if Mr Hunt gives his backing to the trust special administrator’s recommendations on the future of acute provision in south east London later this week.

Mr Hunt has been considering the final report from Matthew Kershaw, who was appointed trust special administrator after South London Healthcare Trust was placed in the failure regime in July. The health secretary will give his verdict by Friday.

Mr Kershaw backed the closure of the emergency department at Lewisham Hospital. The hospital would be merged with Queen Elizabeth Hospital, which is part of South London Healthcare.

Mr Kershaw has argued that the scope of his review needed to be expanded to south east London more generally because it was the only way of securing solvency for the hospitals that make up the trust.

HSJ understands Mr Hunt has had legal advice that Mr Kershaw has not gone beyond the powers granted to him in the legislation but opponents of the Lewisham downgrade believe a challenge is possible on this point.

They also point out the opposition of Lewisham Clinical Commissioning Group means the proposal already fails one of the four tests former health secretary Andrew Lansley said any reconfiguration must pass, and which Mr Hunt has said he will honour.

HSJ’s local briefing also raises questions over the size of the savings that would be made by the combined Lewisham and Greenwich hospitals trust if Lewisham was to be downgraded.

Senior figures in London pointed to a lack of clarity on just how much money the downgrade would save.

The trust special administrator’s projection shows a deficit of £75m at the South London Healthcare hospitals by the end of 2015-16, plus a £600,000 deficit at Lewisham Healthcare Trust.

Lewisham East MP Heidi Alexander pointed out that of the total savings attributable to the six recommendations in 2015-16, only £11.2m came from recommendation five, the downgrade.

The total savings without it come to £73.9m, leaving only a gap of £1.7m to make both viable.

Lewisham’s three MPs say that if Lewisham CCG wants to subsidise the non-implementation of recommendation five by using £1.7m of its £549.4m budget it should be allowed to do so.

The trust special administrator’s team disputed the £1.7m figure, saying the cost of Lewisham A&E was £10.5m a year.

A spokesman for the trust special administrator said: “The estimated deficit of £1.7m is purely theoretical in that it is dependent on all the other recommendations being delivered. The report is clear that the recommendations interlock and that organisational change is a consequent recommendation to [the other five]. It is the means of delivery.

“The incentive to deliver challenging cost improvements will be significantly diminished, if a whole solution is not found, given the new trust will be in deficit each year and therefore reliant on financial support in any case.”