Examination of Witnesses (Questions 320-322)
MR NIGEL
EDWARDS, MR
DAVID STOUT
AND DR
BRIAN FISHER
22 FEBRUARY 2007
Q320 Chairman: But any referral at
a late stage in any hospital reconfiguration is done after all
the process of consultation has taken place and it is done on
the basis of if somebody in the department thinks it ought to
be, not on the basis of this consultation process that everybody
has been involved in, happy with it or not, or happy with the
decision or not. I am just trying to get a feeling for whether,
if people out there who are involved in it—and particularly,
Nigel, your members are involved in this on an ongoing basis,
as it were,—are happy when they come to these decisions
in consultation with all local stakeholders, somebody then has
the right to intervene at a later stage, not that they have done
in the past but should that right continue?
Mr Edwards: Yes, I think I would
apply Richard's test. I think that, in terms of the legitimacy
of the types of decisions that are being made, having some kind
of challenge if there is a real suspicion that a mistake has been
made, because there have been a couple of mistakes made in the
past, is not such a bad thing. Taken from an entirely insular
provider perspective, it would be nice to be allowed to do whatever
one liked without any kind of interference at all. I think the
reality here is that everyone recognises that these are services
that are set up to serve the public and they are funded by the
public. I think the point is that there should be a clear set
of rules about at what point you intervene and that where possible
that intervention should come much earlier in the process than
it currently does. It tends to be rather late in the day and in
some cases intervention is already in many ways too late because
staff have started to leave, consultant posts cannot be filled.
I can think of one particular example where, despite the Secretary
of State's intervention, the service effectively fell apart and
all the Secretary of State did in that particular case was keep
a service that was probably dangerous continuing to run, so it
did not actually achieve what he had set out to do in the first
place. I think earlier intervention using rules with the advice
of the Independent Review Panel seems like a good compromise to
keep the system not subject to capricious intervention but subject
to some external scrutiny and some assistance on rigour.
Q321 Chairman: But is that not done
already when people go to law for judicial review against reconfiguration
decisions? We have had two last year in relation to that, which
is effectively an independent way of challenging it. Is that not
the way of challenging the decision?
Mr Edwards: We challenge the process,
whereas what the Secretary of State and the independent panel
might be doing is saying, "Have you actually got the right
answer here?". It is quite possible that you could be judicially
reviewed, found that you had an entirely proper process but had
a very bizarre and perverse solution, so I think it is probably
worth thinking about these two bits of this separately, doing
the proper process and getting the right answer. If the question
is about intervention on whether the answer is the correct one,
many of the interventions have come too late in the day and could
and should be made significantly earlier. Last minute intervention
is generally unhelpful and on the whole should be discouraged,
but it would be hard for us to argue from where we sit that the
Secretary of State does not have some rights in this.
Q322 Chairman: I think I hear what
you say on that analysis.
Mr Edwards: With foundation trusts
there is a slightly different settlement, of course, which is
that they have a licence which sets out what they have to provide
and if it is not on the licence then the Secretary of State cannot
direct it, and to some extent some of these things are being put
slightly more beyond the reach of the intervention powers of the
Secretary of State, and I think that may be helpful.
Chairman: Can I thank you all very much.
I am sorry for the overrun on this. Hopefully, and I know you
heard this earlier, we will have the report out before the current
Bill has passed through all the stages in Parliament, if not in
the House of Commons in the House of Lords. Thanks again.
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