Judicial review ruling may lead to closure of Royal Brompton children's heart surgery unit

Posted: 30/04/2012

The Court of Appeal has overturned a High Court ruling that upheld the first-ever judicial review challenge brought by one NHS organisation against another.

The Royal Brompton & Harefield NHS Foundation Trust took legal action over the outcome of an NHS consultation by the Joint Committee of Primary Care Trusts (JCPCT) on the future of children’s heart surgery and specifically in relation to focusing children's heart surgery in a smaller number of hospitals as specialist centres. The trust was concerned that such specialisation and the withdrawal of children's heart services from its specialisms would in turn impact on the provision of adult heart services, research and development, and continuity of care as children with congenital heart disease progress through life. Its argument was that the consultation focused too much on the narrow issue of the benefit of specialism and failed to consider the wider impact.

The High Court originally ruled that the consultation was unlawful and unfair to the trust in the way that its capacity for research and innovation and the impact of the proposals upon this was assessed. However the JCPCT appealed the findings and has succeeded in its appeal. Sir Neil McKay, chairman of the JCPCT, stressed that the outcome was in the best interests of children in need of the children's heart service and would enable them to progress with the reforms of the provision of the service.

In a statement, The Royal Brompton & Harefield NHS Foundation Trust expressed disappointment that the issue had divided the judiciary and that Mr Justice Owen’s judgment had not been upheld. It said “The trust took this legal action on behalf of patients and their families. It was action of the last resort and taken with a heavy heart, after a number of attempts to settle the matter at an earlier stage failed.... But it was taken because we remain convinced that there is a vital role for specialist cardiac and respiratory care for children and older patients to be fully integrated in a specialist trust such as ours, which works with the significant research power of our partner Imperial College. We remain convinced that our highly respected services for patients in England and Wales will be harmed if our unit is dismantled as a consequence of the Safe and Sustainable process to date. We believe that the JCPCT’s recommended four options – none of which includes Royal Brompton – distorted the consultation process.”

Commenting on the case, Penningtons clinical negligence partner Philippa Luscombe said: This is not only the first time that one NHS body has instigated proceedings against another but also a strong indication about the level of concern within the NHS about the various proposed reforms which are being considered and how they will impact on patient care in a wider sense. It will be interesting to see whether other challenges are brought and whether one of the concerns of the Royal Brompton that continuity of care over a patient's lifetime is compromised, potentially adversely affecting them, transpires to be the case."

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