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Extending the scope of Trust Special Administration

The Trust Special Administration (“TSA”) process was introduced in 2009 as a method of preserving the continuity of NHS services where an NHS Trust faced insolvency. The scope of the process was extended to NHS Foundation Trusts by the Health and Social Care Act 2012.

The use of TSA in relation to South London Healthcare NHS Trust (“SLHT”) was significant because it is the first time these powers were used. Although many of the Trust Special Administrator’s recommendations were adopted with the minimum of fuss, his proposal for the downgrading of the Lewisham A&E department met with vociferous opposition, mainly from the local population.

The successful judicial review judgement (supported subsequently by the Court of Appeal) attracted unwelcome headlines and meant that, in its current form, the TSA process was wanting.

The Gap

Although the TSA process was applied to SLHT, the Lewisham A&E proposals applied to another Trust which was not subject to the TSA: Lewisham Healthcare NHS Trust.

The TSA process requires a consultation process to be undertaken in relation to the draft recommendations made by the Trust Special Administrator (“TrSA”). However, this prescribed consultation is shorter and more closely defined than would normally be the case under the “consultation and involvement” requirements where non-TSA changes were proposed.

The objector’s case was founded on the unlawful extension of the TSA process to the Lewisham A&E department which mean that there had been an absence of what they claimed was “proper” consultation.

Closing the Gap: Article 119 of the Care and Support Bill

The House of Commons has now passed a provision in the Care and Support Bill which closes the legal gap highlighted by the Courts. In essence, Clause 119 extends the scope of the recommendations emanating from the TSA process to Trusts which are not themselves subject to the TSA process and removes the requirement for a broader consultation on them. Had Clause 119 been in force at the time of the SLHT process, the Lewisham objectors would have found it much more difficult to challenge the proposals about their A&E department.

Why it matters: Key differences between the adjusted TSA Process and the normal “Engagement and Involvement” Duties

The consultation that the TrSA is obliged to carry out under the TSA process circumvents the broader statutory “engagement and involvement” obligations which arise in connection with non-TSA prompted changes to health services.

As a result of Clause 119, users of services at non-TSA Trusts which are affected by the recommendations of the TrSA will find themselves subject only to a “consultation-lite” process.

Conclusion

Clause 119 removes the ability for objectors to prevent TSA changes in the same way that the Lewisham objectors did by removing the requirement for full public consultation.

The use of Clause 119 is, in effect, an acknowledgement that problems affecting unsustainable Trusts go beyond the walls of the TSA Trust itself-there are often structural issues arising out of the wider healthcare economy that contribute to unsustainability.

The public are notoriously protective of local NHS services. The use of a curtailed consultation process is unlikely to reduce the level of objections or challenge. However, it will mean that objectors have to be more creative over the grounds on which they launch judicial review actions.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.