The dos and don"ts of NHS reconfiguration

A legal challenge can stop a reconfiguration in its tracks, top to months of delay and legal costs. Photograph: Eric Lafforgue/Gamma-Rapho by way of Getty Photographs

Across the country, commissioners and providers encounter escalating demand for solutions, growing scrutiny of high quality and flatlining funding. From root-and-branch testimonials of acute, local community and mental wellness solutions to proposals to relocate or near a single service, clinical commissioning groups, trusts and foundation trusts are making day-to-day choices that will form the companies available to their communities.

A lot of of these modifications can be hugely controversial. It takes only one established person or a small number forming a campaign group to bring a legal challenge. What ever the outcome of that challenge, it can stop a reconfiguration in its tracks, leading to months of delay and substantial legal charges.

The most typical basis for a challenge is to argue that the NHS body failed to consult or, if it did seek advice from, didn’t do it appropriately. The duty to seek advice from may possibly be properly acknowledged, but it is not constantly nicely understood. Currently being entirely conscious of your obligations in this spot and acting on them will not only aid you to stay away from controversy, but will also increase the quality of the choices you make.

Most importantly, knowing the duty to check with will lessen the possibilities of your organisation ending up in court. Folks are less probably to want to get legal action if they know that they are becoming listened to. In addition, if you have complied with your duties, they are significantly less probably to be ready to discover a basis for a legal challenge. Last but not least, if you are challenged, being ready to display you knew your obligations and attempted challenging to meet them will give you the greatest opportunity of achievement.

The prospect of legal challenge is not theoretical. We have noticed numerous higher court and court of appeal circumstances in the past two years. NHS bodies have noticed their reconfiguration programs place on hold for months, faced considerable legal devote and endured negative neighborhood publicity, damaging relations with their communities.

So, what are your duties and how do you comply with them? All NHS bodies proposing a service change need to involve the public at the planning stage, in the development of specific proposals and in the choices. The duty is not to consult it is to involve the public. Consultation is one particular way of performing so and will be essential for any huge-scale change. The actual nature of the consultation is down to you to decide, but right here are some crucial dos and don’ts.

Do
• Start organizing your engagement approach as soon as you start any discussions about a proposed service alter, big or tiny.
• Be very clear in public paperwork about what you are arranging and why, what it will indicate for sufferers and why and how you want to hear from them. You must give people sufficient information to enable them to make meaningful comments and recommendations.
• Keep an open thoughts. You can operate on suggested alternatives to present for consultation but you must be prepared to listen to feedback and be open to the probability of changing your thoughts.
• Involve your neighborhood authority overview and scrutiny committee and the well being and wellbeing board early.
• Grow to be familiar with related NHS England advice: Planning and Delivering Services Alterations for Patients and Transforming Participation in Well being and Care.
• Bear in mind that consultation is not a vote. You are allowed to make unpopular decisions but will need to have to be quite clear about why you made them.
• Take legal advice if a modify will be controversial. You are probably to need to have your attorneys significantly less if you talk to them early.

Do not
• Hide or spin the motives for a proposed alter. The courts are quite clear on this: if the purpose you’re proposing one thing is monetary, you should say so. Individuals will presume this is the reason for any proposed closure or reduction and will enjoy the honesty.
• Make assumptions, even in internal emails. A throwaway line saying one thing like “as we move in direction of the closure of the service” may possibly properly turn out to be public if you obtain a Freedom of Info Act request, or if the court orders disclosure of your files. Try out telling a higher court judge you hadn’t prejudged matters if she reads an email like that.
• Overlook Andrew Lansley’s “four tests” – they are nevertheless out there and the courts have confirmed that they nonetheless matter.
• Commence a consultation in the buildup to an election unless it is crucial to do so.
• Make guarantees without really careful imagined. Public bodies are expected to hold guarantees and the courts can make them do so.

Philip Grey is a regulatory attorney at nationwide law firm Mills &amp Reeve

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The dos and don"ts of NHS reconfiguration