HEALTH campaigners are preparing to take legal action to oppose a decision to move specialist cancer treatment away from their county hospital.

The pledge comes as pressure mounts for a full public inquiry into the plans to transfer the treatment of Upper Gastro-Intestinal (GI) cancer from Truro to Plymouth after the revelation that the Royal Cornwall Hospitals NHS Trust had last year been advised that the move may be unlawful.

In a further twist, health bosses late last night published legal advice on the transfer obtained last week which they say backed their course of action.

The Western Morning News yesterday revealed that the hospital trust had been warned that transferring the service warranted a full public consultation.

However, the information – obtained last July – was not published and the transfer went ahead after a public engagement exercise to allay fears.

Last night, Cornwall Primary Care Trust, which steered the transfer, revealed the legal advice it sought last week into whether the move should be subject to a public consultation.

The advice from David Mason, a partner at the firm Capsticks, says: "I am in no doubt from these papers that the PCT complied with its legal obligations (under s242 NHS Act 2006) by carrying out the informal consultation, or engagement, exercise described in the papers. There was no legal requirement to carry out a formal public consultation exercise on this occasion as has been suggested elsewhere.

"In addition, I am equally satisfied that in the circumstances of this case, there was, and is, no separate legal obligation on RCHT to carry out any sort of consultation or engagement process."

Peter Colough, Royal Cornwall Hospitals Trust chief executive, said: "This legal advice is unequivocal in its view that the primary care trust has acted entirely appropriately and lawfully in determining the best option for the future delivery of upper GI cancer surgery services. It is entirely misleading and serves only to undermine patient confidence for any party to continue to suggest otherwise."

However, the county's MPs say the fact remains that revelations over the previously unseen legal advice raise serious questions and a full public consultation was the only answer.

Matthew Taylor, MP for Truro and St Austell, said he was "dumbfounded" that the papers were not released and would be raising the matter in Parliament.

He added: "It does raise a lot of disquiet about the way this has been done. Now this decision needs to be called in and looked at again."

Julia Goldsworthy, MP for Falmouth and Camborne, said the documents, dated July 2008, should have been made available at the time. "People in Cornwall are fearful that more and more of their health services are being moved out of the county and that these decisions are being made behind closed doors and against their best interests."

She said that a public inquiry was necessary to restore public confidence.

St Ives MP Andrew George said the new evidence provided a strong argument to "call the decision in" for review. He also pledged to raise the matter in Westminster: "I will be taking this up with the Secretary of State."

The legal advice from top health barrister David Lock was obtained by the board of the RCHT last year.

It stated: "I therefore regret to have to advise that I consider both the trust and the PCT would be acting unlawfully if they attempt to move Upper GI services from Truro to Plymouth without prior public consultation."

The document was aired at the RCHT board meeting in August 2008, but the PCT said it had not been shared with them subsequently. In the light of its publication, health campaigners who helped collect a 32,000-signature petition against the transfer said legal action could be on the cards.

"We are now giving serious consideration to a legal challenge which could result in the issue being subjected to a legal review," said Graham Webster, vice-chairman of Health Initiative for Cornwall.

Cornwall PCT insisted that its exercise was thorough and concerns acted upon. The organisation, which procures health services on behalf of the public, said its prime motivation was patient care and improving the chances of survivability.

In a joint statement, the chief executives of NHS Cornwall and Isles of Scilly, the primary care trust, and RCHT, Ann James and Peter Colclough respectively, said they stood by the transfer.

They dismissed the legal advice, saying the briefing on which it was based was flawed.

An independent clinical review in February this year by two of the country's leading Upper GI surgeons backed the move saying it should take place "as soon as is practicable". They also cite a Mori poll conducted in Cornwall in which three-quarters of respondents said they would be happy to travel further to achieve the best treatment outcome.

"The decision to move Upper GI cancer surgery to a specialist centre at Derriford is about improving patients' chances of survival and cure.

"We undertook a substantial engagement programme and responded to the issues raised.

"But we will not compromise on delivering better outcomes for patients.

"Both trusts stand by the decision and remain committed to the creation of a specialist centre for Upper GI surgery at Derriford Hospital which will have real and lasting benefits for patients."

One source said: "The cancer service provider at the RCHT is excellent. People understand that centralisation is a national initiative but the process must be managed properly and the public must be consulted with – that's the law.

"But this did not happen. The public have not been given a chance. I have never come across anything like this ever before.

"There will be patients in Cornwall who will be very anxious about all of this. The mortality rates in Cornwall are as good as anywhere else in the country.

"Public bodies act on behalf of the public. That is their role. But this has not happened. I am not saying moving Upper GI services to Derriford is the wrong thing to do but not consulting the public is."