What makes service redesign legally defensible?

There is often an appetite to sue where there has been negligence, claim redress where there has been maladministration and complain where there is a lack of quality or compassion; and rightly so.

However, there is also a desire to protect and preserve NHS services with a reluctance to embrace new concepts, including more centralised and specialist services.  The love of the NHS as a symbol of Britain can be seen by the central part the NHS played in the Olympics opening ceremony (alongside Harry Potter no less!). 

This is a high position to maintain but is it cost effective or safe that the current level of services continue to be provided in the number of hospitals that exist at the moment?

We are beginning to hear an ever increasing message that the answer must be “no” and for a variety of reasons.

When giving evidence at the Mid Staffordshire Foundation Trust public inquiry, former Permanent Secretary at the Department of Health Sir Hugh Taylor said that:

“It may be that local services from time to time have to be closed because it is safer and better to run them from somewhere else. This is a hugely difficult question. It raises questions of politics, of what best quality service provision is and sometimes there is a real tension between what a local population wants and what professionals may think is the best way of providing them a service. There’s no easy answer…it’s a big decision and one that needs to be made transparently…”

The question is whether the public, the politicians, the press and the clinicians are willing to listen to the need for change when the change relates to “their own back yard”?

In this article we examine the current climate of NHS change and within that context, what makes service redesign legally defensible.

The law

The law requires NHS bodies to consult with members of the public before making decisions on changes to health service. Section 242 (1B) of the NHS Act 2006 states:

“(1B) Each relevant English body must make arrangements, as respects health services for which it is responsible, which secure that users of those services, whether directly or through representatives, are involved (whether by being consulted or provided with information, or in other ways) in–

(a) the planning of the provision of those services,

(b) the development and consideration of proposals for changes in the way those services are provided, and

(c) decisions to be made by that body affecting the operation of those services.”

The phrase “relevant English body” includes PCTs, Foundation Trusts and NHS Trusts.  CCG duties will be set out in a new s 14Z2 of the NHS Act 2006 but in the same terms as s 242.

The legislation dictates that commissioners must involve the public in the “development and consideration” referred to in paragraph (b), and the “decisions” in paragraph (c), but only if the proposal or decision will affect the way in which services are delivered to service users, or if they will affect the range of health services available. Any significant commissioning decision will therefore be caught by that definition.

The NHS Act does not insist on consultation but seeks to make sure that service users are “involved”. In practice, for any significant proposed change to services (which would include where services are to be provided), a consultation/involvement exercise will be required to comply with that duty.

This is an area fraught with difficulty and the potential for legal challenge. There has been a raft of reported cases in the last year alone, where commissioners have faced judicial review claims brought by individuals or groups angered by proposed changes. Not all of these have been NHS related - the cases concerning cuts to library services have received as much publicity as those regarding the NHS – but these cases have helped to provide guidance on what “involving the public” really means.

The public bodies defending these cases have won some and lost some.  Even those which have been won, however, have come at a significant cost in legal fees, staff time and resources and reputational damage. Avoiding a judicial review is usually better than successfully defending one in the courts and therein lies the problem.

The problem

Public perception when configuration is on the agenda is usually that any possible hospital department closure must be “bad”,  even when there is evidence that keeping a service open is not clinically safe. The recent night closure of the A&E department at Mid Staffordshire Hospital prompted fierce local opposition despite evidence that the closure was for safety reasons. Julie Bailey founder of Cure the NHS (the organisation that called for the public Inquiry into the hospital) said that ‘people tend to want to protect their own hospital regardless of if it is safe or not’. This seems an astonishing statement but one that needs to be examined if NHS reconfigurations are to be successful in the future.

The reason for opposition to hospital closure, despite levels of quality, is complex and varied. It may be due to mixed messages given to the general public about the decisions that need to be made, or a lack of clear clinical evidence about quality and safety, or comparative data relating to quality and safety of alternative options.

However, with small towns struggling to retain high streets and with local amenities disappearing, losing an NHS service or hospital can be perceived as a “downgrade of their town”. This perception should not be underestimated and is a reaction that statistics and figures on quality or resources may not able to counter without clear honesty and consistency of the message being delivered.

As seen above the law requires the public to be “involved” but involvement clearly must be based on the reality of the options available to commissioners. Anything else is ‘involvement’ in theory rather than practice and any consultation on this basis, is likely to be doomed.

There are three key groups that must be involved in any NHS reconfiguration in order to deliver a consistent message and avoid expensive and unnecessary judicial reviews of changes that are clearly necessary.

NHS management

Included in this is national and local NHS leadership. The two reasons for change are inevitably quality and resources. The NHS has a duty to break even (see section 229-231 NHS Act 2006). NHS commissioners are responsible for achieving this. There is no doubt that as well as quality driving change there is also an overwhelming need to change the way that NHS services are provided in order to achieve cost savings based on a budget set by government.

The general public have a right to consider the options available in their local community but this must be based on sound clinical information and what options are available within the budget. The public must rely on NHS management to be clear as to the options but only within the realms of affordability. Any consultation without those clear boundaries set from the start is likely to be challenged as the general public will have been misled about the options in reality available.

Clinicians

Clinicians can be key to a successful NHS reconfiguration as they are at the coal face of providing quality within a budget. NHS management must ensure that clinicians are involved every step of the way in any proposed change so that they can be ambassadors of the change required.

Of course this is not simple as it sounds as often clinicians may be too close to the outcome of the change, in order to give impartial information. However, there are positive signs of support for significant reconfiguration from national clinical leaders like Professor Terence Stephenson, the chair of the Academy of Medical Royal Colleges. In a recent interview with Denis Campbell, health correspondent, he stated that he was currently pushing the Department of Health to downgrade the status of some hospitals and push through major rationalisation, despite local campaigns to save local units.

Professor Stephenson considers it to be a waste of NHS resources to have hospitals only a few miles from each other providing the same services. He argues that providing acute medical services in larger centralised units would ensure that care teams have enhanced skills because of through put.

With support from national clinical leaders such as Professor Stephenson who understands the need for change, we would hope that local clinical support may be more forthcoming in the future.

The politicians

Strong local feeling to protect communities is hard to resist by local politicians. This has, in the past, been known as the “Kidderminster effect”, when a Labour MP, David Lock, lost his seat as the result of a local campaign to keep Kidderminster General Hospital open. It takes a strong MP to support changes within the NHS that could mean department or site closure, even where clinical evidence and financial constraints may support change.

It is clear that for the NHS to change successfully in the future, politicians must have the courage to provide support based on clinical facts and within the context of budgets set by government, as opposed to collecting local political support.

The reality within the current legal context

Changes will continue to be unpopular without open and honest debate on a national and local level but the reaction of some sections of the public will not always be entirely rational and, in our litigious age, whatever the debate, members of the public (and providers who may lose out in a change process) will continue to challenge.

In the context of trying to stop a particular change to services, that means searching for any arguable suggestion that the NHS body proposing a service redesign has failed properly to discharge its obligations under section 242 of the NHS Act 2006.

Typically, the “line of attack” is to suggest that a consultation process is inadequate and /or that the NHS body’s obligations under the Equality Act have not been met.  The legal arguments will allege illegality, irrationality, breach of legitimate expectation or the old favourite, the Human Rights Act.  The follow-up threat is that unless the exercise is abandoned or re-done, the service user will institute judicial review proceedings.

There is a growing view that the current law makes it too easy for significant and essential changes to services to be stalled while the wheels of justice grind slowly on. As things stand, we have the mantra of “no decision about me without me” being trotted out in a world where the NHS simply cannot afford to do what many of its patients want it to do. 

We have seen the recent financial collapse of the South London Healthcare Trust. No-one realistically thinks that this will be the last NHS body to be dragged into the financial failure regime. If the NHS is not going to be brought to its knees, it must be empowered to redesign services quickly and without having to adopt an overly defensive approach to public engagement.

There are signs that this message is getting through. The recently published DH consultation on the future of local authority scrutiny of healthcare services suggests that the Department wants to “look further at how a balance can continue to be struck between allowing services to change and providing proportionate democratic challenge that ensures those changes are in the best interests of local people.” www.dh.gov.uk/health/2012/07/health-scrutiny/  We would take issue with the word “continue” but applaud the principle of striking that balance.

The new Cabinet Office guidance on consultations states that “The governing principle is proportionality of the type and scale of consultation to the potential impacts of the proposal or decision being taken”.  http://www.cabinetoffice.gov.uk/sites/default/files/resources/Consultation-Principles.pdf

We are not suggesting that the courts should not be able to intervene if valuable public services are being damaged without justification.  We do suggest, however, that it is currently too easy to bring necessary change to a halt, or to slow it down so much that it becomes pointless.

What happens if there is a failure to consult?

Stating the obvious, some NHS bodies are better at effective public engagement than others.  Even those which do it well will not be perfect. Although the courts have stated they will not intervene simply because a consultation exercise was not perfect, no NHS body wants to have to go through a judicial review process to get confirmation that their processes were adequate.

The consequences of failing to properly involve the public can be severe. Commissioners can face legal challenges from several different directions. Individual service users, groups of service users and current providers who risk “losing out” when a service is changed, can all bring a judicial review.

It is no defence that the decision taken was plainly the best one. A judicial review is concerned with the process by which a decision was reached. If a public body does not comply with its legal obligations when planning and implementing service changes, the court will strike its decisions down, whatever the merits of those decisions might have been. Clearly, the right way forward is to ensure that the public have all the information to make the ‘right’ decision themselves at the start of the process.

Injunctions can be sought as part of the court process to stop steps being taken by the NHS.  A court cannot usually substitute its own decision but it can refer the decision back to be reconsidered. All this takes time and will delay plans.

Defending a judicial review is a costly process.  Judicial reviews have several stages, involve a great deal of paperwork and often several, separate, court hearings.  The “internal” costs in time, distraction and adverse publicity and the “external” costs in legal fees are significant.  If a judicial review is lost, the commissioner is likely to have to pay some or all of the claimant’s costs as well as its own. If the commissioner wins, it is unlikely to recover much of its own legal costs from a claimant who may well be in receipt of funding from the Legal Services Commission.

The timing of a consultation

Consultations must begin when proposals are still at a formative stage in order to be effective. Remember, the NHS Act requires involving the public in “the development and consideration of proposals for changes in the way those services are provided.”

What does that actually mean? If a PCT/CCG is considering whether to continue commissioning a particular service, do they have to involve the public from the very first meeting when this issue is discussed? Fortunately, consultations do not have to begin at such an early stage as, in reality, there would not be sufficient information to be provided to the public at this stage. The time to start consulting is once consideration has been given to the options available, within the budget available, and once these options will be considered in more detail.

The Department of Health Guidance Real Involvement is helpful on this issue.  It states, page 22:

“Users must be involved not only in the consideration of proposals to change services, but also in the development of any proposal that will change the manner in which a health service is provided or the range of services offered. For example, users must be involved in the development of a range of options for the way community services could be provided within a PCT area, not just asked for their opinion on a model that has been developed behind closed doors by health professionals and managers”.

Importantly, the courts are clear that public bodies are entitled to have identified their “preferred option” before consulting. This is as long as the consultation is carried out with a genuinely open mind and the commissioner takes everything it learns from that exercise into account before making its final decision.  Again, the issue is honestly and clarity about what is being said.

What does a consultation actually involve?

The guidance from the Department of Health (Real Involvement) and case law show that there is no set format which every consultation should take. It is for the NHS body undertaking the consultation to decide what form it will adopt. What matters is that clear information is given to the public; that they are able to respond; and that their responses are taken into account when making the final decision. The greater the impact of proposed changes, and the more people likely to be affected, the more detailed and comprehensive the public involvement should be.

The NHS Institute has also recently published “The Engagement Cycle” setting out what is required when engaging patients, carers and the public.

www.institute.nhs.uk/tools/the_engagement_cycle

Typical methods of consultation can include:

• public meetings
• writing to all affected service users and their families / carers
• poster campaigns in NHS buildings
• information in the local media

The Department of Health Guidance (Real Involvement) even suggests that one method of communicating with the public could be the use of sculpture!  We would love to see any examples of that having been put into practice!

The Overview and Scrutiny Committee

The Overview and Scrutiny Committees (OSCs) are local authority bodies with the right to consider and make recommendations on proposed service redesign by local health bodies (other than NHS FTs). The OSC must currently be consulted where there is substantial variation or development of services and in some cases there is a duty to consult before the decision is made. If the OSC disagrees with the decision they can refer the matter to the secretary of state for a final decision. Once again this means that effective communication is essential.

10 ‘Rules’ for a successful consultation

To help ensure that a consultation is effective and lawful we have listed our top 10 “rules”.

1. Consult when your proposals are at a formative stage.  Making a decision on a change to services, and then consulting on that decision, is unlawful. 
2. Mind your language! Decisions by public bodies have been struck down by the courts, simply for the use of language that gives an appearance to the public that a decision had already been taken with the suggestion that the consultation was a sham.
3. Set out what you are proposing clearly; what the options really are; and why these changes are needed.
4. Be up front about the reasons for a proposed change.  In the current climate, the driver for change will often be largely financial.  If that is the case, say so.
5. Think about how long the consultation will last. The old Cabinet Office Code of Practice suggests a minimum of 12 weeks, but it now suggests 2-12 weeks. For significant service redesign it will be difficult to justify less than 12 weeks.
6. Take the responses into account before making a final decision.  Commissioners are not bound by the views of the public but it is essential to be able to demonstrate that the public’s views were considered by the decision makers.
7. There is no set form for a consultation.  How to conduct one is a decision for the public body.
8. If a public body identifies only one serious option to put to the public, it is entirely lawful to consult on implementing that single option if you can justify why only one option was realistic. Members of the public can suggest alternatives and if so these must be considered.
9. There is nothing to stop a commissioner reaching a final decision that was not one of the options put forward for consultation.  But there must be good reason for such a departure and if the final decision departs substantially from the initial options, it may be necessary to undertake a second consultation.
10. Be careful of making promises!  If clear, unequivocal promises have been made to individual service users or groups prior to or as part of the consultation process, the public body will have created a “legitimate expectation” that those promises will be kept.

Interestingly when giving evidence at the Mid Staffs Inquiry last year Andy Burnham stated:

“I did push through some fairly controversial changes to hospital configuration because, as a country, we’re going to have to find a way with dealing with this debate because hospital services will have to change.   I personally feel that we will have to move away from the DGH model, the idea that there is a hospital that does everything and everybody goes there for everything.  I don’t think that’s a sustainable model for the rest of this century. I think we need to look at a world where more is done at a community level in better quality community facilities and there is better specialist provision across regions.  That is the way I would go but there is a real political roadblock in the way of those changes that will be difficult to overcome.”

The CQC in their final submissions stated:

“We would suggest that there now needs to be a greater willingness to contemplate closure of services which are, and always will be, fighting against the institutional constraints which militate against excellence. That will need courage on the part of all players in the system, whether by CQC in the use of enforcement notices or local planners who need to plan and lead the reshaping of local services.  We raise the question of whether further thought could be given to devising systems of structuring debate over changing services that would meet the needs of democratic accountability and resisting legal challenge.”

No-one would seriously question the importance of public engagement in the planning and provision of healthcare services.  The public pays for the NHS.  The NHS provides care and support to people of all backgrounds, often at times when they desperately need it.  However, we live in an era where significant changes have to be made to the structure of some of those services. If the public receive the honest, clear information that they require from clinicians, politicians and NHS management they will hopefully be able to assess for themselves the need for change.

Philip Grey, associate (barrister), Mills & Reeve LLP philip.grey@mills-reeve.com

Katrina McCrory, associate, Mills & Reeve LLP katrina.mccrory@mills-reeve.com