Transparency in the face of austerity: why the NHS must stick to its democratic principles

Betsi Cadwaladr University Health Board set out proposals earlier this year to downgrade consultant-led maternity services in the region. But its plans were quashed by judges due to its ‘secretive’ and ‘publicly discredited process’. Here, Stephen Meade, an associate at Welsh firm Capital Law, explains the importance of transparency and why health boards must be accountable for their decisions.

Our besieged NHS may be putting health boards under extraordinary pressure to cut costs, however, that doesn’t give health boards carte blanche to making sweeping organisational changes without effective consultation periods.

In February, the Betsi Cadwaladr University Health Board (BCUHB) unexpectedly announced that it had decided to temporarily close the consultant led maternity services at Ysbyty Glan Clwyd in Bodelwyddan, due to what it said were increased patient safety risks.

The move was universally opposed by the public and hospital consultants alike, who were not only angry that they were losing their maternity services, but particularly because the decision to do so had been done in secret.

The health board justified their decision by reference to patient safety risks – due to insufficient staffing levels – although when considered against a backdrop of sweeping NHS austerity measures there was a significant amount of public discontent voicing the concern that this was a fiscal rather than welfare led decision.

The cloak and dagger nature of the move only stoked this fire.

In April two campaigners, Annick Cummings, a GP from Pendyffryn Medical Group, and Rhian Roberts, a mother from Denbigh, challenged the decision, on the basis that the health board made no attempts to consult the public and staff before making its decision.

The two women had both undergone emergency C-sections at Ysbyty Glan Clwyd and owed the lives of their children to the hospital’s maternity services. It was a matter close to their hearts and, supported by the British Medical Association (BMA) and represented by Capital Law, the two women issued proceedings in the High Court on April 21.

In May the case was adjourned and the court imposed an interim injunction preventing the health board from closing the maternity unit and making ancillary changes to the maternity unit.

The court also ruled that the health board was to disclose more information and documents about its secret decision to close the maternity services at Ysbyty Glan Clwyd.

An order of a High Court Judge, Mrs Justice Nicola Davies, on July 7, recorded that the health board had withdrawn its decision on July 1 and ordered that the health board pay the legal costs of Mrs Roberts and Dr Cummings. The health board was also ordered to carry out a process of consultation in accordance with its legal obligations that they had previously denied all relevant parties.

During this timeframe Mark Drakeford, Minister for Health and Social Services for Wales, announced that the health board was being put into special measures in accordance with the NHS Wales escalation framework.

Soon after Professor Trevor Purt was suspended from his post as Chief Executive of BCUHB and Simon Davies, Deputy Chief Executive of NHS Wales, was appointed as interim boss.

This was the third turnaround of senior management for the health board in two years.

The ramifications of this decision would have gone far wider than the local population in North Wales had it stood.

Had Betsi Cadwaladr succeeded in resisting a judicial review challenge of the decision that it made in secret it would have set a worrying precedent for how health boards across England and Wales could manage service changes in the future.

Without a proper consultation with the public and medical staff on such proposals, plans to substantially reconfigure patient services cannot be properly scrutinised or assessed.

And, in the case of health boards, there is a legal obligation for this to happen. This is a particularly relevant necessity when the judgement of the health board in question is already under high levels of scrutiny.

The various failures of BCUHB have been well documented. However, when the health board has been described as having ‘significant management failings’, with – in the case of the Tawel Fan mental health ward – ‘institutional abuse’ of patients, who are ‘treated like animals’, there was perhaps even greater outrage that a decision to close such a vital maternity service had been taken in such a manner.

Of course, sometimes a genuine threat to public safety requires urgent remedial measures to be taken, but in this instance, BCUHB made the fundamental error of ignoring those who were best placed to assess the threat to public safety – the clinicians working on the ward. Not to mention the various stakeholders affected.

The turn of events in these proceedings should serve as a timely reminder to health boards that, despite the growing pressures they face to streamline services and make efficiency savings, that transparency remains a governing principle and they must deal with matters openly and listen to those they serve, and those they employ.

It certainly sends a warning shot to any public body contemplating cutting corners in the future.

Stephen Meade, Associate, Commercial Disputes

Published 24th August 2015, Western Mail, p. 27