The
CHA (
Community Hospitals Association) and CHANT (
Community Hospitals Acting Together Nationally) ran a seminar entitled 'Community Hospitals under threat' on Monday 16th January 2006 at which
Leigh Day & Co human rights partner,
Richard Stein, was invited to speak.
The one-day seminar was aimed at
local hospital campaigners across the country who were hoping to learn how they could prevent the threatened
closure of community hospital services. Over 80 such hospitals are currently facing the reduction of loss of services. Individuals such as representatives from Leagues of Friends, local campaign groups, MPs, Councillors, community leaders and residents were all at the seminar to share campaigning tips and hear about the legal challenges that can be used to prevent hospital closures.
Legal challenges: consultation
In the paper that he gave at the seminar Richard outlined the conultation requirements that exist under existing legislation, namely the
Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002 (reg.4) and the
Health and Social Care Act 2001 (s.11(1)).
- NHS bodies must consult the overview and scrutiny committee of the local authority and involve and consult service users and potential service users.
Consultation with the overview and scrutiny committees is required for a substantial variation of local provision, although 'substantial' is not defined by the 2002 regulations. Consultation must take place while the proposals are still at a formative stage. The only reason for NHS bodies
not to consult is 'because of risk to safety or welfare of patients of staff'. The overview and scrutiny committee has considerable powers to request further information, report to the Secretary of State asking for further consultation, or to requests that the Secretary of State overrules the decision of the local NHS body. The courts can reverse decisions to close community hospitals where consulation is not carried out.
Consultation guidelines
Richard referred attendees to the Department of Health guidance
publication entitled
'Strengthening accountability - involving patients and the public', and to the Cabinet Office
publication,
'Code of practice on consultation' as useful checklists.
No consultation, what next?
If NHS bodies do not follow the consultation guidelines as mentioned above and make major changes what should campaigning groups do?
- Find patients affected by the service changes willing to take legal action
- Collect all available documentation from NHS bodies
- Obtain legal advice/write a letter before claim to NHS body reminding them of their duty to consult, threatening judicial review if they do not reverse the decision
- Bring case promptly
Judicial review
Judicial review cases are heard in the High Court in London or Cardiff and if closure is imminent proceedings can move very quickly. Claimants do not have to go to court. A successful judicial review about the lack of consultation only delays a closure decision so it is important to keep campaigning. A challenge to the decision to close a hospital on the grounds that the human rights of a patient have been breached is difficult.
For more information please contact
Richard Stein on 020 7650 1200
Information was correct at time of publishing. See terms and conditions for further details.