Section 120 of the Care Act 2014 - what are the implications?

Section 120 of the Care Act 2014 gives trust special administrators the authority to shut, or downsize, any hospital or A&E over a much shorter period than would have been the case before the Act became law if a neighbouring trust is in financial difficulties. The current Trust Special Administrator (TSA) guidelines, which were brought in during 2009 in order to preserve the continuity of NHS services and only affect trust’s that are in financial difficulties, state that a consultation process is required, to allow for discussion around the TSA’s draft recommendations. However, it is a much shorter consultation and is more closely defined than usual “consultation and involvement” necessities.

Section 120, which was introduced in an attempt to close the legal gap observed by the courts, extends the scope of the TSA process to neighbouring trusts that are not subject to TSA and removes the requirement of broader consultation.

The bigger picture

The primary issue, if the law becomes more widely used, lies with the lack of debate the TSA process produces. To achieve a complete resolution on a decision, cases need a broader negotiation and consensus.

When the TSA process was used in relation to South London Healthcare NHS Trust (SLHT), the proposal to downgrade the A&E department at Lewisham was met with heavy opposition from the local community. The Lewisham Healthcare NHS Trust belonged to another trust which wasn’t subject to TSA processes, not the SLHT. As such, the community was able to challenge the decision. However, if Section 120 had been in operation, the objectors would have found it more difficult to challenge the decision.

A degree of independence is helpful to guarantee local needs are taken into account; however, it does encourage the development of self-interest within organisations and the ability to veto important changes which may be necessary to build a sustainable health economy. Section 120 could therefore support the long term economic goals of the wider NHS.

Effects on local communities

The TSA process seems to adopt a ‘one size fits all’ approach, which is shown by Section 120 relevance to non-TSA trusts. There is a potential for local populations to feel that they haven’t had sufficient involvement in important decisions which will ultimately affect them. The public are fiercely protective of the NHS. Section 120 removes any decision making power the local population might have had over the closure of their local service. Even though the provision is unlikely to reduce the overall level of challenges, it could force objectors to be creative over the grounds on which to launch judicial reviews.

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.