High Court gives green light for hyper-acute stroke units in Kent21/02/20
The High Court has handed down judgment in the joined judicial review cases of A & Marion Keppel v South Kent Coastal CCG and others. In both cases, the Claimants challenged the decision of the Kent and Medway CCGs to establish hyper-acute stroke units (HASUs) at 3 hospital sites in the county. Whilst there were eight separate grounds of challenge, the judgment is the first time that the Court has considered the duty to reduce inequalities imposed on CCGs by section 14T of the NHS Act 2006.
Section 14T provides that:
“Each clinical commissioning group must, in the exercise of its functions, have regard to the need to:
(a) reduce inequalities between patients with respect to their ability to access health services, and
(b) reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services."
The Claimants argued that the CCGs’ decision to close the stroke unit at the Queen Elizabeth the Queen Mother Hospital in Margate meant that those living in the most deprived areas to the east of Kent including Thanet would experience an increase in travel time to hospital by ambulance.
In her judgment, Mrs Justice Farbey rejected the Claimants’ arguments that "the ability to access health services" under section 14T(a) meant the ability to arrive at a hospital building. Instead, she held that section 14T(a) related to the ability to take advantage of and benefit from a health service. Whilst shorter journey times may be relevant they were not determinative of access to health services. The Judge was satisfied that the CCGs had considered health inequalities but did not regard them as a key evaluative criterion in determining the location of HASUs. It was reasonable for the CCGs to conclude that improved stroke services would benefit those from deprived communities to a greater degree than others, given that people from deprived areas have an increased risk of stroke. In this way, the decision to establish HASUs would play its part in reducing health inequalities.
The Judge emphasised that the 2006 Act imposes a number of different duties on CCGs relating to a wide range of factors. This reflects the complexity of decision-making in an advanced healthcare system such as the NHS. In considering all of these factors, the CCGs had to exercise substantial discretion and judgment. The Court’s role in respect of such decisions was supervisory, and should not stray into the merits of the decision taken by the CCGs. In particular, the Court should not “cherry-pick evidence” or “interpret the defendants’ decision-making documents and the consultation documents like a statute.”
This case provides useful guidance to CCGs on how to approach the duty to reduce health inequalities when making decisions in respect of service changes as well as confirming that it is reasonable for the NHS to adopt a multi-factorial, broad brush approach to such decisions.
The CCGs were represented by Peter Edwards and Charlotte Radcliffe of Capsticks, who specialise in the legal and governance aspects of NHS service changes. If you would like to discuss the implications of the judgment, or your own reconfiguration plans, with them, please get in touch.