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Downgrade of Grantham Hospital's A&E 'breached legal duty' says High Court judge

The decision to downgrade Grantham Hospital's A&E department to an urgent treatment centre (UTC) and close the hospital for medical admissions breached legal duty, according to a High Court judge today (Friday).

United Lincolnshire Hospitals NHS Trust (ULHT) appeared virtually before London’s High Court last month to face campaigner Jayne Dawson's accusation that the decision in June 2020 to replace the A&E with a UTC was unlawful and lacked consultation or risk assessment.

It followed the trust's announcement in June 2020 that it was to immediately implement proposals to convert Grantham Hospital to a 'green site' in order to carry out planned cancer and urgent surgery in a Covid-safe environment.

Grantham Hospital (45153305)
Grantham Hospital (45153305)

Jayne argued that the move, which resulted in the loss of 70 to 80 medical beds, had not provided enough information, or involved patients enough and left service users without locally accessible services.

The trust, however, said there had been an urgent need to make the decision, that releasing proposals at an earlier stage could have been confusing and that the green site was the only option that met their criteria.

Mr Justice Linden today determined that the trust had breached its legal duty to involve service users in the development and consideration of the proposed changes and made a declaration that the decision in June was unlawful.

He found that in giving service users less than three days to respond to the proposals, the trust did not make arrangements which complied with their duty to secure meaningful or fair involvement of service users in development or consideration of the proposal at Grantham.

He also found that publicising the decision after it had been taken did not amount to meaningful involvement and that steps could have been taken to involve service users in the development and consideration of the proposal at an earlier stage.

While the judge considered the impact of the Covid-19 pandemic on ULHT, he decided that the legal duty to involve service users was not a duty that can be sacrificed without clear evidence that a trust is unable to comply with its other duties as a result of having to comply with its duty of involvement.

On the facts of the case, this was not made out and the trust could have made suitable arrangements to secure the meaningful participation of service users. The judge found that the trust appeared to have been led by a concern about messaging and the reaction of service users.

The trust said the changes were temporary and made in response to the national health emergency. Since the court hearing, it has taken a decision to start restoring services at Grantham Hospital and this process is under way.

Local people, including campaigners for SOS Grantham Hospital fighting to protect and maintain Grantham Hospital’s A & E and acute services for over a decade, feel the plans were made without appropriate public consultation or engagement of the public given the significant impact on local service users.

Jayne Dawson was one of those affected and instructed Irwin Mitchell’s specialist public law and human rights team to bring the legal challenge.

Faith Salih, a specialist public law and human rights lawyer at Irwin Mitchell who represented Jayne, said: “The judgment is a significant victory for patients. Any plans to downgrade hospital services such as A & E provision must follow a fair and lawful process. That did not happen in this case and the court’s decision sends a strong message about the importance of the legal duty to involve service users before plans are finalised, while involvement can still be meaningful.

“Jayne is delighted that her case has been successful and a declaration that the Trust acted unlawfully has been granted. Although the Trust was under pressure to respond to the Covid-19 pandemic and considered it was acting in the interests of the Lincolnshire population, it was strongly felt that the views of hospital users were not taken into account and that people were denied the opportunity to comment while the proposals were being developed.

“We are pleased that the trust has recently decided to restore services at Grantham.

“The court has recognised that the purpose of the legal duty is that the involvement of service users will lead to better informed decisions and will increase the likelihood that the human impact and implications of plans, proposals and decisions are taken into account. This is an important duty and not something that Trusts can opt out of.

“Jayne hopes that the local NHS will carefully consider the judgment and take steps to ensure service users are properly involved in this process.”

Jayne, who has a number of serious health conditions and has had surgery to amputate her leg, said: “I am pleased the court’s decision is so clear. ULHT should have involved local people before the changes were made.

"While I understand the need for specialist care for those affected by the pandemic, local patients like me were put at risk of increased transmission of Covid-19 travelling out of the area for treatment. It was difficult for disabled and elderly people to travel, as I personally experienced. Covid cases in Lincolnshire were lower than other places and yet the action taken was more drastic.

“I hope that ULHT will now restore the services to Grantham in full and make sure people are involved properly in plans for the future of Grantham Hospital.”

Andrew Morgan, chief executive of ULHT, apologised to the public and said that the trust will reflect on the judge's ruling today.

In a statement he said: “We regret that we didn’t involve service users sufficiently whilst making temporary changes to our services to protect the health and wellbeing of our patients during the Covid-19 pandemic.

"We apologise to anyone who would have liked to have been more involved in the development of our plans. We accept the ruling and will not be appealing.

"We note that the issue in this case was the process by which the decision to create a Grantham green site was reached, rather than the merits of the decision itself.

"We are pleased that the judge has rejected the claim that the decision itself was unsound, and makes clear that the decision was perfectly rational and was taken in good faith and for proper purposes.

"The judge also commented that there is evidence that numerous patients welcomed the changes and that this is unsurprising given that the decision itself had a great deal to commend it and appears to have been beneficial to many members of the community in Lincolnshire.

"We will reflect on the judges ruling and amend and improve our public involvement processes for the future."

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