DISTURBING new questions have been raised concerning how much senior health bosses knew about crucial legal advice obtained ahead of a decision to transfer specialist cancer services from Cornwall to Devon.

A letter obtained by the Western Morning News which was written in October 2008 speaks openly about the legal advice obtained several months earlier, which suggested that transferring Upper GI services without a full consultation may be unlawful. The advice from a top firm of solicitors, dated July 2008, was taken by the Royal Cornwall Hospital Trust (RCHT).

But Cornwall's Primary Care Trust (PCT), which funds the service and has driven the transfer, has continued to insist it knew nothing of the document until October this year, when it was published by the WMN.

The letter which the WMN has seen is dated October 8, 2008, and from the then acting chairman of the Royal Cornwall Hospital Trust, John Mills, to Eric Parkin, then chairman of Cornwall County Council's overview and scrutiny committee.

Entitled "Upper GI Services in Cornwall", Mr Mills writes at length about the proposed transfer. In a critical section, he says: "I should add, last but not least, that the legal advice the trust has received is that it, as an NHS organisation, is equally bound by s.242, National Health Service Act 2006 to consult on any proposed changes in service provision." Mr Mills then states he is copying the three-page letter into Ann James, chief executive of the PCT, David Whalley, then leader of Cornwall County Council, and a number of other people in the senior ranks of health and local government.

Joe McKenna, chairman of Health Initiative for Cornwall, said the contents of the letter were "truly shocking".

He said the people of the county would this morning be waking up to the knowledge that vital information regarding the legal advice at the time did not appear to reach everyone involved in the decision.

Proposals to move complex Upper GI cancer services, which affect an estimated 20-30 people a year, provoked outrage when first published by the PCT. The organisation said its sole concern was with achieving the best possible outcome for patients – which a single specialist unit in Derriford in Plymouth would accomplish.

The move was also backed by an independent panel of senior medics on the field who said that it should take place as quickly as possible.

However, 32,000 people who signed a petition pleading to keep the service in Cornwall vehemently disagreed, encouraging health campaigners to call for a full public consultation on the matter.

The PCT stated that the transfer did not constitute a "substantial" change and therefore a full public consultation was not required. Instead, it undertook a "public engagement" process to explain the switch and allay fears.

The decision was subsequently underpinned by Cornwall County Council's overview and scrutiny committee which, as one of its last acts in April, paved the way for the transfer.

Nearly two months ago, after the WMN published the RCHT's legal advice, the PCT released its own guidance from lawyers, which also backed the move. A statement released yesterday by the RCHT said the information obtained last year was not passed on: "RCHT did not share the legal advice it obtained in 2008 with the Cornwall & Isles of Scilly PCT until after the overview & scrutiny committee meeting in October this year."

Nonetheless, the letter seen by the WMN begs some serious questions about who knew what.

The PCT was asked to comment in detail about the letter; when precisely it knew about the legal advice obtained by the RCHT and why the information given in the letter from Mr Mills was not acted upon. In response, the organisation issued the following statement:

"The PCT has already confirmed that it did not receive a copy of the legal advice sought by the former management team at RCHT regarding the transfer of Upper GI cancer surgery until after the OSC meeting on 6 October at which the matter was first raised in public. We have shared publicly current legal advice which supports the position of both the PCT and RCHT.

"It is therefore the clinical advice that we are focused on – providing a recommendation from leading national surgeons about how we can improve patients' chances of survival and cure."