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NEWS: Owen Dyer Councillor loses legal battle over Derbyshire general practice BMJ 2006; 332: 1469 [Full text]

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Something funny on the way to the Forum

elizabeth d barrett   (27 June 2006)

Derbyshire GP Case:Full-Text Judgment

Jay Ilangaratne   (27 June 2006)

Re: Something funny on the way to the Forum

Jay Ilangaratne   (4 July 2006)

Something funny on the way to the Forum 27 June 2006
elizabeth d barrett, GP Shires Health Care, 18 Main Street, Shirebrook, NG20 8DG Send response to journal: Re: Something funny on the way to the Forum	Mr Justice Collins agreed with Pam Smith’s lawyer when he concluded, ruefully, that ‘my client won everything except the judgement’. The awarding of 75% of costs against the PCT reflects that. Although there was no evidence that the tendering process was unfair, the judicial review was not empowered to examine that; it was not the basis on which the case was taken. Absence of evidence, in this instance, was not evidence of absence. Examination of the tendering process was for another day. Pam Smith’s argument was proved to have been right. She should have been consulted, but wasn’t. The reason the case went against her was that she should have used the Patient Forum, of which she was, like most patients, unaware. In a classic case of ‘information asymmetry’; the patient was to blame for not knowing. You would be hard put to find any patients, or any surgery, aware of its Patient Forum, and still fewer who could tell you what Forums do, and why they should command respect and trust. Forum members are self-selected volunteers. In any such organizations, volunteers may tend to be drawn from the articulate, mobile and self-confident middle-classes, and not from those who need all their resources for the daily grind of survival. Langwith is socially, economically and physically isolated. After all, that was part of the problem. It is curious to think that its elected Parish Councillors should have to go through unelected volunteers, based not just outside the village but, in this case with a mailing address in another county, to engage its PCT in a constructive conversation about its health services, and persuade it to answer its letters. A patient-led NHS indeed. Ironically, the organisation that could have helped would have been the Community Health Council, but these were abolished in 2003. CHCs were robust political entities, with networks that had been built up over years. They had members from County Councils and voluntary groups, and therefore had representative validity. The intention to abolish the CHCs was announced precipitously and without justification. No overlap arrangements were put in place, and the functions were fragmented by creating a different Forum for every PCT and every hospital Trust. As a result, there was loss of coherence and overview. It took the whole of 2004 to put patient Forums into place. In North East Derbyshire, it proved very difficult to recruit; and for some considerable time, there were only two Patient Forum volunteers for the whole of the PCT. It is now announced that Patient Forums are to be re-configured, once again. Constant change is one way of preventing organisations from existing long enough to build up necessary networks, skills and familiarity with procedure, to be effective. One wonders if this is, perhaps, the intention. In the words of Patricia Hewitt: ‘Patient choice and patient preference will dictate what happens in the new NHS’. Section 11 goes further: ‘Patient and public involvement is central to developing any organisation. NHS organizations must recognize and value the benefits of listening and responding to patients’. The crux of this matter is the tension between the political rhetoric and reality of what happened. Of course, we now know that the policy of patient choice was meant as a vehicle for the market, but it was inevitable that patients might think it was about having a say in what sort of primary care arrangements they wanted. To be stung by one’s own rhetoric is one of the prices of deception. Choice was never meant for this, but no-one tried to explain the real reason, so it was no wonder it all went wrong. That this small ex-mining community took its PCT and the Department of Health to the High Court is a lesson of hope, even if the case failed. Patient involvement became hot news for the day, and ‘section 11’ became common currency in health service planning. For someone, like myself, whose instincts were always to stay with authority, and to trust those in charge, this has been an interesting and unexpected journey and I hope our experience will be of use to others. We must all be prepared to point out that bringing multi-national, shareholding, companies into primary care, in deprived areas, without seeking the views of the patients, carries a risk of disenfranchising already vulnerable and powerless communities, while wealthier ones have the luxury of looking on to see how it all works out. At its best, the whole matter has been managed, so far, with breathtaking paternalism. Some of these companies have an unashamedly expansionist ethos. Using the experience and needs of deprived communities as an opportunity to break into the market of the UK health service, re- model primary care, and gain power over huge and lucrative strategic purchasing budgets, could be regarded as cynically exploitative. There has been little attempt to engage communities in any sort of meaningful conversation about their, very reasonable, concerns. No wonder the motivation for this policy is being questioned. Communities, like Langwith, know we have reached the final ‘tipping point’ – the end of the NHS, as understood by the UK population; they are not taken in by glib re- definitions. I share their anger and sense of betrayal. Competing interests: Dr E Barrett put in a bid for Langwith branch surgery with a prescribing pharmacist. She is lead GP for patient involvement in her current practice.
Derbyshire GP Case:Full-Text Judgment 27 June 2006
Jay Ilangaratne, Founder www.medical-journal.com Send response to journal: Re: Derbyshire GP Case:Full-Text Judgment	It is perplexing as to why the BMJ continues with the practice of not providing an online link to freely available full-text Judgments which it finds worthy of reporting as a news item. For the benefit of those who would like to see the full Judgment in this case,I have set up a link below. Click Here Competing interests: None declared
Re: Something funny on the way to the Forum 4 July 2006
Jay Ilangaratne, Founder www.medical-journals.com Send response to journal: Re: Re: Something funny on the way to the Forum	Dr Barrett says "Pam Smith’s argument was proved to have been right. She should have been consulted, but wasn’t. The reason the case went against her was that she should have used the Patient Forum, of which she was, like most patients, unaware." Mr Justice Collins has dealt with the claim that Pam Smith was "unaware" of the availability of the Patients' Forum. At para.26 of the judgment[1], it is said: "I am, I am afraid, unimpressed by the contention that the claimant and, presumably, those advising her were unaware of the existence of the Patients' Forum. No attempt has been made to seek to persuade it to intervene. Ms Grey suggests that that remedy would have taken a great deal of time to pursue. If the Patients' Forum had taken the matter up on the claimant's behalf, I find it difficult to believe that the PCT would have gone ahead regardless. But, if it did or if the Forum did not accept that s.11 was in play, the remedy of judicial review could then have been pursued. I think that there is force in Mr Herberg's submission that the claimant should have tried in that way to avoid judicial review." Ignorance of the law or availability of an altenative (cheaper) remedy is not generally an acceptable excuse in law, and that principle seems to have been applied properly in this case,too. It is also a fact that Pam Smiith was represented by solicitors. Mr Justice Collins added at para.25[1]: "However, I do not accept that there has been undue delay. Since she became aware of the decision, the claimant has through her solicitors acted reasonably expeditiously, bearing in mind the need for a pre-action protocol letter and the possibility that the need to comply with s.11 might have been accepted." As confirmed by Dr Barrett,"there was no evidence that the tendering process was unfair";that further supports, the final outcome in this case was fair. References [1]Smith v North Eastern Derbyshire Primary Care Trust & Secretary of State for Health [2006] EWHC 1338 Competing interests: None declared