String vest award for Councils’ legal advice on flawed hospital cuts consultation

Another string vest award for official information that is full of holes.

All the Save our A&Es campaign groups have called on the Joint Health Scrutiny Committee to refer the flawed consultation on the proposed hospital cuts to the Secretary of State. The co-chair Cllr Malcolm James told us they couldn’t. We asked why not. When we finally found out what the Councils’ Legal Officers had told the Joint Health Scrutiny Committee, we were not convinced.

Why did the Legal Officers tell the Joint Health Scrutiny Committee  that they can’t refer the flawed hospital cuts consultation to the Secretary of State, when documents Kirklees Council’s Information Access Team sent us seem clearly to state that they can? And why did the Councillors accept this advice?

A bit of background: on Feb 27th,  Save our NHS campaign groups from Calderdale, Kirklees and Barnsley wrote an open letter to the Chair of the 22nd Feb Joint Health Scrutiny Committee meeting, asking how Calderdale and Kirklees Councils’ legal officers justified the contentious claim that the Scrutiny Committee can’t stop the deeply flawed Consultation on proposed hospital service cuts. This was after we’d called on the Scrutiny Committee to do this.

At the 9th March Joint Health Scrutiny Committee meeting, the Chair told us that the Councils were treating this as a Freedom of Information request – despite the fact that the Kirklees Council Legal Officer was sitting next to her and could perfectly well have told us there and then.

At the end of March, we finally received an answer to our question, which we found unsatisfactory. We have asked for clarification of the unsatisfactory points,  but the Councils haven’t responded.

These are the points we’ve asked about:

  • A Kirklees Council email dated 8th Feb says that the Kirklees Scrutiny Officer Richard Dunne had advised that the JHSC:

“can refer the consultation to the SoS [Secretary of State] if the content is inadequate or flawed. ”

  • Richard Dunne’s opinion is validated by the Health Scrutiny Powers document, that Kirklees Council’s Information Access Team sent us. This says that the Joint Health Scrutiny Committee’s powers include referring NHS substantial reconfiguration proposals to the Secretary of State if a local authority considers:

“The consultation has been inadequate in relation to the content or the amount of time allowed.”

Our question: Why didn’t the Joint Health Scrutiny Committee acknowledge this, when we called on them to refer the consultation to the Secretary of State?

More points:

  • It seems clear from the Legal Advice document (bullet point 2) that referring the consultation to the SoS would mean waiting until the final consultation materials were published; but once that had happened, this power is available to the Joint Health Scrutiny Committee (JHSC), if it were to judge that the content is inadequate or flawed.
  • There seems to be a lack of clarity in the Legal Advice document. Specifically,  the third bullet point under “Powers of JHSC’ seems unclear and we would like clarification.   It says:

“The role of the JHSC is to carry out the scrutiny process and they are required under statute to be consulted as part of that process. Once the formal consultation paper has been finalised and consultation begun this will be considered. The JHSC will respond to the consultation process and the CCG will reply. It is only once this has happened that the JHSC will be in a position to be able to consider the responses and evidence and assess whether the criteria for a referral to the Secretary of State is met.”

In the second sentence, we don’t understand what the last phrase, “this will be considered”, refers to.

Our Question What will the JHSC will consider, once the formal consultation paper has been finalised and consultation begun?

(It appears to us that this phrase refers to bullet point 2, which says:

“Only a draft consultation paper has been issued so far – this means that it is too early in the process to identify whether the criteria for a referral to the Secretary of State is met at this stage.”

Our Question: So does the highlighted sentence mean: Once the formal consultation paper has been finalised, the JHSC will consider whether the criteria for a referral to the Secretary of State are met?

  • If this is the meaning of the highlighted sentence in bullet point 3,  the next sentence appears to deny this is possible, by saying that the JHSC will only be able to assess if the criteria are met for referral to the SoS, once it has responded to the consultation process and the CCGs have replied.

This seems to be at odds with the implication of bullet point 2: that once the consultation document is finalised, it is no longer “too early” to refer it to the SoS.

It also seems to be at odds with Richard Dunne’s reported comment that the JHSC

  “can refer the consultation to the SoS if the content is inadequate or flawed”.

It also seems to be at odds with the Health Scrutiny Powers document, which  says that the JHSC’s powers include referring NHS substantial reconfiguration proposals to the Secretary of State if a local authority considers:

“The consultation has been inadequate in relation to the content or the amount of time allowed.”

Our Questions: 

  • Is the Councils’ legal advice  saying that the Joint Health Scrutiny Committee will only be able to assess if the criteria are met for referral to the Secretary of State, once it has responded to the consultation process and the CCGs have replied? If so, why is it saying this?
  • Specifically: is this about referring the reconfiguration proposals to the SoS? Rather than the consultation?
  • Please will you clarify at what stage in the process the Joint Health Scrutiny Committee can decide whether there are grounds for referring the consultation to the SoS on the basis that:

  “The consultation has been inadequate in relation to the content or the amount of time allowed.”?

It is our contention that it was clear as soon as the final version of the consultation materials was published, that their content is inadequate by virtue of significant errors and misinformation, and omissions of vital information, which make it impossible for the public to make a fair, objective response to the proposals.

It is also our contention that you don’t have to get to the end of the consultation process to judge whether the consultation is inadequate in relation to the content.

Rosemary Hedges, Secretary, Calderdale 38 Degrees NHS Campaign Group

Paul Cooney, Secretary, Huddersfield Keep Our NHS Public
Terry Hallworth, Huddersfield Resident
Christine Hyde, North Kirklees Support the NHS
Nora, Barnsley Save Our NHS
Jenny Shepherd, Chair, Calderdale & Kirklees 999 Call for the NHS

Pat Jones, Slawit SOS

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