Child heart surgery campaigners win legal battle (From York Press)

Child heart surgery campaigners win legal battle

10:20am Thursday 7th March 2013 in News By Mark Stead, Political Reporter

CAMPAIGNERS fighting to keep child heart surgery at a unit which treats seriously-ill children from York and North Yorkshire have today won a legal challenge over plans by health bosses to stop operations.

The Save Our Surgery (SOS) group lodged a judicial review against the NHS decision to end paediatric heart surgery at Leeds General Infirmary, claiming the consultation process was "unfair and procedurally flawed".

Mrs Justice Nicola Davies, sitting at London's High Court, has now backed their claims, although it is not yet clear what the ramifications of this will be.

An SOS statement said: "This judgement is in itself a victory for the people who fought to keep children's heart surgery services in Yorkshire, and to challenge what they knew to be a flawed and unjust process."

Sir Neil McKay, chair of the Joint Committee of Primary Care Trusts (JCPCT), which made the original decision following the NHS Safe and Sustainable review, said he was "very disappointed" at today's ruling as reform to children's heart services was "long overdue". He said the consultation had been carried out with "an honest and open mind", and the JCPCT was making representations to the court that the NHS decision should not be entirely quashed. An appeal will also be considered.

SOS spokeswoman Sharon Cheng said outside the Royal Courts of Justice in London that today's ruling did not necessarily mean the Leeds heart unit was saved, and much would depend on what orders the judge decided to make when the matter returns to court later this month.

One possibility is that the judge will order fresh consultations, which could throw plans for the reorganisation of children's heart surgery around the country into delay and disarray.

Ms Cheng said: "We have won this case on every point.

"It doesn't necessarily mean the heart surgery is saved, but fresh reconsideration will have to be given as to what is to happen next and the fight will go on.

"We knew it was time to fight because of the strength of feeling of families. The campaign started small, like David and Goliath, then grew and grew out of all proportions."

Almost 600,000 people signed a petition against stopping child heart surgery in Leeds, which would mean children from York and North Yorkshire having to make a longer journey to Newcastle for treatment instead.

In a statement, Sir Neil said: “The pressing need to reform children’s heart services is long overdue, and experts have cautioned that further delay in achieving the necessary change would be a major setback in improving outcomes for children with heart disease.

"The case for the reconfiguration of children’s heart surgical services remains strong. There is a rare consensus on the need for change right across the board. The consultation, which we undertook with an honest and open mind, was the largest carried out by the NHS and respondents were staunch in their support of the need for change."

He said the High Court judgement did not support SOS's claims that the consultation was a "rubber-stamping exercise", saying: "We do not yet know what the court will decide in terms of next steps.

"We are making representations to the court that it should not quash the decision in its entirety as the claimant seeks. Once we have the court’s judgment on this point, we will strongly consider the possibility of appeal.

"The claimant wishes the NHS to abandon its plans for the reconfiguration of children’s heart services against the express wishes of the vast majority of respondents to consultation. I never forget that the purpose of our work is saving lives and improving quality of life for children. On behalf of the NHS, I want to reassure families, patients and clinicians that we remain as determined as ever to reconfigure services for children with congenital heart disease in the interests of better outcomes and a more safe and sustainable service for children and their families”.

The legal challenge stems from a decision last July by the JCPCT that paediatric cardiac surgery should be concentrated at fewer, larger sites to improve standards across the country.

At a recent hearing, JCPCT lawyers argued the consultation process was fair and not open to legal challenge, but today the judge ruled the process fatally flawed.

Philip Havers QC, appearing for SOS, argued the consultation process was unlawful because of a refusal of the JCPCT to release information which could have helped Leeds General Infirmary better make its case for survival.

The QC said the Kennedy Panel, a group of experts set up to advise the JCPCT, produced "sub-scores" measuring the quality of service at each centre according to various criteria.

But he said the JCPCT chose only to look at the panel's total scores, and "bizarrely" refused to disclose the sub-scores to consultees until the consultation was over.

Mr Havers argued the sub-scores were crucial, and that if Leeds hospital chiefs had known how they had been marked, they could have made submissions to improve their total score and might have avoided ending among the bottom three centres earmarked for closure.

In her judgement, the judge said Leeds had been worst-affected by the scoring system because the hospital came bottom of the rankings. She ruled: "As the scores were relevant to the assessment, the breakdown of the scoring should have been disclosed to the centres whether or not the JCPCT proposed to look at it.

"If there is a public law duty to make information available to a consultee, disclosure cannot be denied simply because one party does not wish to look at that information."