EXCLUSIVE: Cancer services move 'unlawful'

A DECISION to move specialist cancer services from Truro to Plymouth was taken despite legal advice that it was unlawful, the Western Morning News can exclusively reveal.

Last year, the Royal Cornwall Hospitals NHS Trust was given a stark warning that proposed changes to services were so substantial that they warranted full public consultation with the people of Cornwall.

However, the crucial advice was not published and, in the face of fierce public opposition, the go-ahead was given to transfer services for Upper Gastro-Intestinal (GI) cancers.

The trust says its actions are legal, but Health Secretary Andy Burnham will this morning be given a dossier on the controversial move and urged to put it on hold until an independent inquiry is held.

Graham Webster, vice-chairman of campaign group Health Initiative for Cornwall, said it was a betrayal: "We believe this is nothing less than a public scandal. I am beyond anger on this issue and what has happened. People across the county have campaigned for these services to be retained in Cornwall. Heads should roll."

Proposals to move Upper GI cancer services from Truro's Royal Cornwall Hospital to Derriford in Plymouth provoked outrage when first mooted by Cornwall Primary Care Trust. The organisation, which procures health services on behalf of the public, insisted it was not a "substantial" variation in services and a full public consultation was not necessary.

Instead, the PCT undertook a "public engagement" process to explain the plans and allay fears.

However, it is understood that the then chief executive of RCHT, John Watkinson, was so concerned that the board would be breaking the law that he asked for expert legal advice.

The guidance from barrister David Lock, of law firm Mills and Reeve, which has been obtained by the Western Morning News, is unequivocal.

"I regret to advise the trust that the approach of the PCT to force through changes without consulting the public is plainly unlawful," it said.

In his guidance, Mr Lock said there is no suggestion the service for Upper GI cancer patients in Truro was failing. But there was a clear duty to consult extensively on any changes to preserve public confidence in services.

In a damning statement, he said: "I therefore regret to have to advise that I consider both the trust and the PCT would be acting unlawfully if they attempt to move Upper GI services from Truro to Plymouth without prior public consultation."

He also identified a "clear legal duty to engage with the public" and criticised the approach of the PCT, saying it "sought to make final decisions without public consultation".

He added that should local campaigners issue judicial review proceedings against both the trust and the PCT, they would have a "reasonably strong case" for an injunction.

The advice is dated July 29, 2008 and according to the papers for the board meeting of the RCHT a few days later on August 5, it was presented and duly "noted".

The board papers said the chief executive of the RCHT and the chairman, then John Mills, would meet top PCT officials in September, when the matter would be discussed. It is not known whether the information was passed on to the PCT – although earlier this month, it denied ever seeking legal advice on the matter.

However, on September 25, 2008, Mr Watkinson was asked to take a "special leave of absence" by Mr Mills over matters relating to an investigation into his former employment.

Rose Woodward, chairman of the Cornwall and Isles of Scilly Cancer Patient and Carer Group and a cancer patient herself, said it was inconceivable that RCHT and the PCT would not have shared such crucial legal advice. "It would be unrealistic to think that the PCT would not have known. They are in meetings all the time. They talk to each other."

This morning, Health Secretary Andy Burnham, will be briefed on the matter by Jude Robinson, the Labour Party's prospective parliamentary candidate for Camborne and Redruth.

"It is not in Cornwall's interests that the future of NHS services is 'stitched up' behind closed doors," she said.

Last April, a petition signed by 32,000 people was delivered to Cornwall County Council objecting to the transfer of services. A few days later, as one of the last acts of the county council before it was dissolved, the overview and scrutiny committee (OSC) decided the move was not a substantial variation of services, paving the way for it to go ahead.

Earlier this month, at a meeting of the OSC of the new unitary Cornwall Council, Mr Webster pressed for the legal advice to be made public. PCT chief executive Ann James told the committee it had not sought legal advice and therefore had nothing to share.

Last night, the trusts issued a joint statement defending their actions: "Legal advice given to the Royal Cornwall Hospitals Trust was considered by its board in August 2008. Both trusts believe the document, that was shared with the PCT following the last Overview and Scrutiny Committee meeting was based on a very inaccurate briefing, was seriously flawed, littered with inaccuracies and contains subjective and potentially libellous comment.

"The legal advice was not shared with the PCT – even though the legal opinion at the time suggested it should be. This supports the criticism of governance arrangements in place at RCHT at the time of the Independent Review; a significant amount of work has subsequently been done to make improvements.

"Over the last few days, the NHS has sought further legal advice which confirms that a decision not to carry out a formal, public consultation on these proposals was entirely justified and reasonable and there is no proper basis whatsoever to say that such a decision was unlawful. The information leaked today does not provide any information that requires us to reconsider the right way forward.

"We wish to reiterate that these proposals are about improving patients' chances of survival and cure. We have undertaken a substantial engagement programme and responded to the issues raised as far as we are able."