More information about the “Paul Burstow amendment”

What’s the amendment about?

Amendment NC16 to the Care Bill seeks to add a further clause which will change the effect of clause 119 (commonly known as the “hospital closure clause”).

This new clause seeks to address the widespread concerns that have been raised by a variety of groups about the original “hospital closures clause”. It aims to ensure that:

· Where a Trust Special Administrator (“TSA”) is appointed, the TSA will treat all commissioners of NHS services equally. The clause removes the unfair preferential position of the commissioners of NHS services of the Trust which is in administration.

· That where the TSA recommends that changes are made at financially and clinically viable hospitals (i.e. other than hospitals run by the Trust which is in administration), those decisions will continue to be taken by NHS commissioners who are locally accountable to their communities. It takes away the right of the TSA to impose changes at hospitals other than the Trust which is in administration

· It ensures that, where changes are proposed for financially and clinically viable hospitals, these changes will only take effect after proper patient and public engagement.

Who’s behind this amendment?

Paul Burstow MP has tabled the amendment (Amendment NC16) to the Care Bill. This amendment was drafted with the assistance of the barrister who acted for the Save Lewisham Hospital campaign in their landmark victory over Jeremy Hunt. The QC’s time was paid for by donations from 38 Degrees members.

Several MPs from different parties have now added their name in support of this amendment. These include:

• Andy Burnham (Labour)
• Caroline Lucas (Green)
• Andrew George (LibDem)

How does the original hospital closure clause work?

The original “hospital closure clause” makes changes to the TSA process which is used when an NHS Trust gets into serious financial difficulty and the government is entitled to appoint an administrator – the TSA – to take over the Trust and produce a report recommending changes to local NHS services.

The TSA is only supposed to recommend changes to the Trust in administration but in the case of South London Healthcare NHS Trust, the TSA recommended shutting the A&E and maternity services at an adjoining hospital, Lewisham, despite the fact that Lewisham hospital was highly rated and not in financial difficulties. Lewisham hospital was earmarked to be downgraded because of problems at a neighbouring hospital, despite the opposition of local doctors and the local community.

Local campaigners, supported by 38 Degrees members, paid to launch a legal challenge against this decision. The judge ruled that the TSA had exceeded his powers, because he couldn’t try to impose changes at neighbouring hospitals. He only had power to recommend changes at the hospitals run by the Trust which was in financial difficulty.

The original Hospital Closure Clause tried to change the law to give the TSA extensive powers over any other hospitals that were linked to the financial problems of the Trust which was in financial difficulty. This meant that NHS services could be subject to widespread reconfiguration by the back door, without the support of local commissioners and without proper public consultation.

The powers opened up the possibility that the government would use these new powers to change or cut services at NHS hospitals without local people, doctors, or decision-makers having a proper say.

What does the amendment do?

The amendment seeks to change the “failure regime” to make it clear that local doctors and patients must have a real say.

It does this by firstly requiring GP commissioners (local doctors who have the power to decide what health services you are able to access and who provides them) from across the whole area affected by any proposed changes to have the final say in what services are provided by local hospitals. The original hospital closure clause only gave this right to GPs in the area of the hospital with the financial difficulties that triggered the “failure regime”.

Secondly it makes it clear that if the TSA recommends changes at a neighbouring trust which is not in special administration (as happened with Lewisham), the final decision maker should be local doctors in that area – not the TSA or the government. So in the case of Lewisham, proposals to shut the maternity and A&E unit could only go through with the support of Lewisham clinical commissioning group.

It also provides that where the local Clinical Commissioning Group are considering adopting changes recommended by the TSA, they must go through proper consultation with the local community, local authority and local medical professionals before any changes can be agreed.

Is this a perfect solution?

Almost certainly not! But it provides a far better balance between local and national decision making than the original clause.

There are many things that lead to a hospital getting into serious financial difficulties including disastrous PFI deals. These deals can rip off the taxpayer and harm the NHS. If changes are needed to local NHS services, those decisions must be made locally by those with the best interests of local patients and only after a proper process which gives local people a say in how decisions should be taken.

Is it better than the original hospital closure clause?

Definitely yes – this new clause puts in new safeguards to ensure patients and doctors get a say in their local NHS. It prevents them being overruled by the government using a “failure regime” in a neighbouring area.

Is getting this new clause passed better than simply stopping the hospital closure clause going through?

Yes! The new clause makes it clear that local doctors and patients have a right to have a say before changes are made to their NHS.

It should avoid us having to rely on the courts to protect these rights, as we did in the case of the campaign to protect Lewisham hospital.