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Children’s heart surgery consultation was ‘unlawful’

For immediate release

7 November 2011

In his judgement handed down today, Mr Justice Owen has concluded that the consultation on the ‘Safe & Sustainable’ review of children’s heart surgery was unlawful. Justice Owen stated that Royal Brompton & Harefield NHS Foundation Trust’s challenge to the consultation succeeds on the grounds that the consultation process was unfair to the Trust: "…the unfairness being of such a magnitude as to lead to the conclusion that the process went radically wrong". He concluded: "…in my judgement the consultation exercise was unlawful, and must therefore be quashed."


Commenting on the judgement, Mr Bob Bell, chief executive of Royal Brompton & Harefield NHS Foundation Trust, said: "This is an important day for our patients, and for the whole of the NHS. It is the culmination of a struggle that has lasted many months and has at times been both unpleasant and deeply stressful. It has been an upsetting time for many people, and one of our greatest concerns has been the needless anxiety that has been caused to patients, their families and our staff.


"It would have been so much easier to simply accept the plans of the Joint Committee of PCTs back in February, but we felt the stakes were simply too high. We could not sit back and watch while flawed plans to dismantle our specialist children’s services at Royal Brompton were drawn up by bureaucrats, plans which we knew would have a harmful effect on patient care.


"The real tragedy is that the judicial review could and should have been avoided. It was obvious to us from the outset that there were errors in the Safe & Sustainable process and we made Sir Neil McKay, chair of the Joint Committee of Primary Care Trusts, aware of our concerns. His refusal to consider these issues left legal challenge the only option open to us. This was highly regrettable, a decision of last resort.


"I would like to take this opportunity to sincerely thank all those staff, patients and their families who have supported us so strongly. I hope very much that lessons will be learnt from this judgement and that in future measures will be put in place to ensure reviews such as Safe & Sustainable will be genuinely independent, professionally robust, entirely transparent and appropriately led.


"There are many others whose support has been deeply appreciated. They include Mr Greg Hands, MP for Chelsea and Fulham, and both the Cystic Fibrosis Trust and Asthma UK, whose unswerving dedication to the well-being of patients with serious respiratory disease is remarkable. The expertise of both Mr Alan Maclean QC, and the legal team at Hempsons, has been invaluable.


"And on a personal note, I would like to thank those members of the Trust who have worked long and hard since this flawed consultation was announced. Several of them have spent many hours of their personal time, day and night, working to save our specialist services. Their dedication and commitment will surprise no-one in the NHS, it is precisely what makes the health service in this country great.


"The position of our Trust remains that the number of paediatric cardiac surgery patients in London and the South East warrants a paediatric network system, comprising the three current outstanding centres, each of which offers a different but complementary model of care, admired in many parts of the world. We already work closely and successfully with both Great Ormond Street and Guys and St Thomas’. There is more that can be done, indeed must be done, as we strive to find a solution for the implementation of such a system."


Mr Justice Owen’s judgement centres on the assessment of Royal Brompton’s 'research and innovation' score in the exercise that determined which centres were included in the options to be put to public consultation. Two separate analyses of each centre were undertaken as part of the Safe & Sustainable programme. The first included self-assessment exercises and visits to all centres from an independent panel led by Sir Ian Kennedy.


The second 'configuration evaluation' was carried out some months later by management consultants KPMG, and was used to identify suitable configurations of surgical centres around the country. These configurations became the four options in the public consultation (A-D).


The assessment stage concentrated on the safety and sustainability of each centre and did not ask centres for, or include an evaluation of, paediatric cardiac research output and quality (its main focus being clinical services). So, detailed information on Royal Brompton’s paediatric cardiac research output and programme was not supplied, because it was not asked for.


It was not until a public meeting on 16 February 2011, that representatives from the hospital became aware that a score which rated Royal Brompton’s paediatric cardiac research programme had been used during the second ‘configuration evaluation’ exercise.  On investigation it became apparent that this score had been determined using information supplied for the first, unrelated assessment, despite the fact that it had been made clear that the two would be separate exercises. No specific information on the hospital’s paediatric cardiac research programme had ever been requested and without the benefit of relevant information, a low score was given. According to Justice Owen, the consequence was to "…seriously distort the consultation process. Those responding to the Consultation Document would inevitably have proceeded on the premise that the RBH Trust’s capacity for research and innovation was poor…"


In fact, Royal Brompton, along with its primary research partner Imperial College, has an internationally-respected research programme and frequently leads league tables in both cardiac and respiratory medicine.


Notes to editors:

1.         Royal Brompton & Harefield NHS Foundation Trust is the largest specialist heart and lung centre in the UK and among the largest such centres in Europe. Royal Brompton Hospital has an international reputation for specialist paediatric services. It is the third largest UK centre for paediatric cardiac surgery and the largest UK centre for congenital heart services.

2.         Responding rapidly to critically ill children is part of the daily work of the paediatric team, which is a national specialist referral centre for children with heart and lung disorders – the largest in the country for those with heart rhythm problems.  Children come to us from all over the UK. Our multi-disciplinary team approach, involving cardiologists, surgeons, intensive care specialists, anaesthetists, specialist nurses, physiotherapists and other health professionals, ensures our younger patients get the best possible care in a clean, safe environment.

3.         Our experts promote the principle of ‘shared care’ and are involved in an expanding programme of outreach clinics, at which they see patients with paediatric colleagues at 30 hospitals across the South East, covering Essex, Sussex, Surrey, Hertfordshire and Middlesex. Royal Brompton is also a partner in the Children’s Emergency Transport Service (CATS) with St Mary’s and Great Ormond Street.

4.         The Trust is the largest centre in Europe for adult congenital heart disease and is a significant provider of fetal cardiology services, covering 10 per cent of all babies born in England.  The majority of these babies are referred by maternity hospitals across the UK, from the routine “20 week” ultrasound scan. Our clinicians work with experts in fetal medicine units at partner hospitals, to provide the best possible care for pregnant woman. Thus, the hospital offers a seamless transition of patients from fetal life through infancy, into childhood, adolescence and adulthood, providing the highest standards of care through all stages of life.

6.         Royal Brompton experts sit on, and chair, international advisory panels and professional bodies, are keynote speakers at conferences throughout the world and share their knowledge through teaching both in the UK and abroad. They raise awareness of their profession, and of the high standard of paediatric care and expertise available in the NHS. Their research collaborations cross international boundaries and were rated in the top three most highly cited health research teams in Europe for cardiac, cardiovascular and critical care, with Imperial College. http://www.rbht.nhs.uk/research/overview/bibliometric/

Cardiovascular disease: Top five organisations measured by their share of Highly Cited Publications


% HCPs

Imperial College London


Royal Brompton & Harefield Hospitals NHS Trust


University College London


St George's Healthcare NHS Trust


University of Oxford


 Respiratory disease: Top five organisations measured by their share of HCPs


% HCPs

Imperial College London


Royal Brompton & Harefield Hospitals NHS Trust


University of Southampton


Southampton University Hospitals NHS Trust


University College London*


 References: 1. RAND Working Paper - Bibliometric analysis of highly cited publications of health research in England 2002-2006. Van Leeuwen T, Grant J, Chonaill S.  RAND. February 2011.

 7.         The Trust’s two Biomedical Research Units (run jointly with Imperial College) were awarded £20 million funding earlier this year. The cardiovascular BRU incorporates leading facilities for cardiac imaging, interventional cardiology and genetics. Much of the cardiovascular BRU’s research focuses on heart regeneration, aiming to increase understanding of poor heart function in those living with cardiomyopathy, arrhythmia, coronary heart disease and heart failure. This includes looking at new heart treatments using genes, imaging techniques, stem cells, tissue engineering and devices.

For further information please contact:

Jessie Mangold

Head of Media Relations

0207 351 8672/ 07866 536345



Jo Thomas

Director of Communications

0207 351 8850

Royal Brompton

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