Lewisham A&E: democracy in intensive care

Using the judiciary to overturn the decision to close a London A&E department was not a triumph for people power.

On Wednesday, the High Court for England and Wales ruled that Jeremy Hunt’s decision to scale back services at Lewisham Hospital’s Accident and Emergency department was unlawful. The court decided that the secretary of state lacked the power to make the decision based on the recommendations of his appointed NHS Trust special administrator, Matthew Kershaw.

The High Court also ruled that Kershaw lacked the power to make recommendations in relation to Lewisham A&E, given that the hospital did not fall under the NHS Trust he had been appointed to administer. The decision was broadly welcomed as a triumph for ‘people power’, given that the case had been brought by members of the local community and medical staff from nearby hospitals and health facilities.

Eh? Sorry to piss on the parade, but since when does the quashing of a decision made by an elected representative mean a victory for ‘people power’? I am happy that Lewisham A&E will stay open, but the fact that Hunt has been forced to adjust the process through which he makes decisions by an unelected Judge, the fact that government policy has been dictated by lawyers rather than the electorate, is a disgrace to democracy, not a demonstration of its ‘power’.

The case of Lewisham A&E shows the extent to which everyone except the public has a say in the future of the NHS, from middle-managing wonks like Matthew Kershaw, to the lawyers and judges who now get to decide how we in the public get our healthcare.

Of course, some will say, ‘But the people brought the case in the first place!’; ‘Will someone please look at the placards!’ The litigation was even funded by the public through online crowd sourcing. It’s people power in action!

It’s at this point that I have to declare an interest. I grew up in Lewisham. It is ma endz (to coin a phrase). I can personally testify that Lewisham hospital did a good job – indeed it was identified as one of a few hospitals in the area which was thriving.

I can also testify that this campaign had the support of at least the most vocal components of the local community; 25,000 people turned up to demonstrate against its closure and, I am told, the campaign has been the talk of polite Lewisham society since the closures were announced. But the moment campaigners, having failed to win the argument through democratic channels, reached for lawyers to fight their fight for them, the matter became anything but democratic: it became a depressingly straightforward legalistic argument about what the health secretary could or could not do under the relevant legislation.

Of course, the High Court judgement will do nothing to address the reasons why Lewisham A&E was facing closure in the first place. It may not even do anything to keep it open in the long run. Judicial review, the mechanism deployed by the lawyers to fight the case, merely addresses the narrow legalistic question of whether the secretary of state had the power to make the decision he did. He can now always make the decision another way, on a different justification, taking into account the High Court judgement.

I was also struck, when speaking to people involved in the campaign, that they thought the closure of Lewisham A&E represented an ‘attack on the NHS’. When I asked what they meant, they would usually respond to the effect that the closure would mean travelling a long way to access what the NHS had always promised: free health care at the point of demand.

Such is the conflation around the discussion of healthcare and the NHS. What people tend to mean when they say ‘an attack on the NHS’ is actually ‘an attack on free healthcare at the point of demand’. There is a conflation of the ideal of free healthcare and the current mode of delivering that ideal, which is the NHS.

Of course, we might get closer to the ideal of free healthcare at the point of demand if we do attack the NHS, rather than holding it up as a sacred cow which should be protected at all costs. The planned closure of Lewisham A&E was not an ‘attack’ on the NHS. The planned closure was a product of the NHS’s ongoing and systemic failure.

Administrators are effectively management consultants drafted in as a last resort to save badly failing healthcare Trusts, and who can be appointed under the provisions of the National Health Services Act 2006. South London Care Trust had been faced with years of mismanagement. A third of its debts were a result of its failed private finance initiatives, a brainchild of New Labour – which puts pay to the idea that this case did anything to strike a ‘blow’ to the Tories.

Because South London Care Trust was failing, Kershaw recommended that Lewisham’s A&E be closed in order to push up the income of the heavily indebted Queen Elizabeth hospital in Woolwich. In short, an unelected wonk was drafted in to make crisis decisions on behalf of idea-less elected ministers, with the effect that the public in Lewisham were treated like lemmings to be funnelled into a failing hospital to save its skin. All this took place under the legal and managerial mechanisms within the NHS. Is the NHS, then, really worth protecting from ‘attack’?

There will be those who view the privatisation of the NHS as an attempt to subordinate users to the pursuit of profit. But this would be narrow-sighted in the extreme. It would ignore the continuous disaster stories of NHS management. It would ignore the systemic problems in the NHS which have nothing to do with funding per se, such as its expansion into therapy and lifestyle management, and ultimately into more and more aspects of our everyday lives. It also ignores the complete dearth of alternatives as to how to manage and fund an NHS.

Of course, the people of Lewisham had cause to be angry. But the decision to close Lewisham was not an ideological attack by evil Tories on the glorious NHS. The decision was part and parcel of the system of healthcare that the NHS delivers, and has continued to deliver, under successive governments: target-driven, infected with layers of middle management and obstructive regulation, overspending, wasteful and interventionist.

If we want to be serious about the ideal of the NHS – high-quality, free healthcare for all – then we can do better than suing our elected representatives into nominally changing their minds. This was no victory for the demos. Suing our elected representatives into changing their minds about the key institutions of our society lifts these institutions away from the public debate, and places them in the hands of unelected judges and lawyers in the High Court. In the end, this case may actually have damaged the channel through which genuine progress may be made towards the ideal of free healthcare for all: democratic engagement, and unencumbered debate on how such healthcare should be delivered.

Luke Gittos is spiked’s law editor. He is also a paralegal in criminal law and convenor of the London Legal Salon.

For permission to republish spiked articles, please contact Viv Regan.

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