New Bed Closure test - a potentially powerful tool

Hospital bed closures are a highly contentious issue, often provoking much professional medical concern, as well as concern in the local community.  They are also a matter of considerable political controversy.

On 3 March 2017, the NHS England Chief Executive announced that from 1 April 2017 significant hospital bed closures would have to meet one of three new conditions.

Local NHS commissioners who propose closing beds as part of any reconfiguration or STP plan must now:

• “Demonstrate that sufficient alternative provision, such as increased GP or community services, is being put in place alongside or ahead of bed closures, and that the new workforce will be there to deliver; and/or
• Show that specific new treatments or therapies, such as new anti-coagulation drugs used to treat stokes, will reduce specific categories or admissions; or
• Where a hospital has been using beds less efficiently than the national average, that it has a credible plan to improve performance without affecting patient care (for example in line with Getting it Right First Time programme)”.

The new bed closure conditions are supplemental to albeit that they “build on” the four existing tests for service reconfiguration.  These four tests, put in place in 2010 are:

• Support from GP commissioners;
• Strengthened public and patient engagement;
• Clear clinical evidence
• Consistent with patient choice.

The underlying rational for the new test, as expressed in the announcement,  was as follows:

“Hospitals are facing contradictory pressures.  On the one hand, there a huge opportunity to take advantage of new medicines and treatments that increasingly mean you can be looked after without ever needing hospitalisation.  So of course there shouldn’t be a reflex reaction, opposing each and every change in local hospital services.

But on the other hand, more older patients inevitably means more emergency admission, and pressures on A&E are being compounded by the sharp rise in patients stuck in beds awaiting home care... there can no longer be an automatic assumption that it’s OK to slash many thousands of extra hospital beds – unless and until there really are better alternatives in place for patients”.

The bed closure conditions document takes effect as NHS England guidance, issued under the powers conferred under section 14Z8(1) of National Health Service Act 2006 (“the 2006 Act”), to which all CCGs “must have regard” under section 14Z8(2).

The most significant part of the new rules on bed closures is the importance of being able to demonstrate that the local health economy will deliver “sufficient alternative provision”.  Whilst that sounds like loose language, if it is read with the rationale for the new tests it seems to mean something fairly concrete.  Lofty future aims (e.g. more care in the community) will not meet it, particularly when social care provision is under increasing strain and many care homes are closing due to restrictions on local authority funding.  In order to demonstrate compliance with the new test, CCGs will need to present costed, thought-through plans which show that there is “sufficient alternative provision” of NHS services for the expected future demand from patients (which may be greater than the present demand) which is presently met by the beds that are due to close.  These new services do not need to be physical “beds” and, where there is a proposed increase in community based services to support patients in their own home, the replacement services will often not involve new beds.  But, given the restrictions on capital in the NHS and the absence of any money for “double running” in a transitional period whilst one service is closed and another is scaled up, meeting the new tests is likely to be onerous for NHS commissioners, particularly when linked to the parallel duties to tackle health inequalities.

The impact of this test is one of the issues in R (on the application of Cherwell District Council & others) v Oxfordshire Clinical Commissioning Group (CO/1587/2017) (“the Horton case”).  The local action group, KEEP THE HORTON GENERAL is an interested party.

The questions that arise on this issue in the Horton case is whether the test applies to bed closures which were temporary and are to be made permanent, whether it applies to affect a consultation on bed closures already underway when the new test came into effect and whether it was sufficient to obtain the acquiescence of the Clinical Senate to the bed closures or whether patient involvement pursuant to s14Z2 (whether by consultation or otherwise) was required.  The Councils’ and the action group position is that the test did apply and consultation was required.   On Tuesday 5 September, the High Court agreed that this was arguable and granted permission to apply for judicial review on this ground as well as others.

Whilst this may be the first case to raise this issue before the court it is unlikely to be the last.  The bed closure conditions are potentially a very useful tool in cases where there is a real concern about the overall impact of plans to reconfigure local NHS services.

Samantha Broadfoot QC is instructed for Keep the Horton General.