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Think before you speak: How to involve the public effectively when reconfiguring NHS services

The NHS is facing a tumultuous time as rising demand and a squeeze on public funding require hospitals and other providers to do more with less. At the same time, post-Francis and Keogh, there is a huge focus on the quality of care. As NHS bodies strive to organise services more effectively, they will inevitably seek to consolidate in some areas, meaning that some services will be reduced or even closed. Philip Grey, a healthcare regulatory lawyer at national law firm Mills & Reeve, discusses the practicalities.

The press is increasingly waking up to the funding pressures on the NHS, although commissioners and providers have been grappling with these issues for several years. However, the extent of service reviews has reached a new pitch and all types of NHS organisation now face difficult decisions. 

Any proposal to close, reduce or relocate a service can have a significant impact on local communities and tensions often run high at the thought of NHS closures. All too often, the first time the press becomes aware that the NHS is reviewing the future provision of a service, there is a headline in the local paper screaming ‘Hospital under threat of closure!’

This is not a deferential age, and people are more aware of their rights than ever. Set against this background, it is essential that NHS bodies fully understand their obligations to involve the public when reconfiguring services and that public consultations are conducted in line with the relevant guidance.

In the past few years there has been a plethora of High Court and Court of Appeal cases where NHS bodies have faced legal challenges to proposed service changes, based on the argument that they failed to consult. Every time this happens, the NHS organisation faces negative publicity, legal costs and delays to the changes it seeks to make.

These challenges can come from one determined individual or a campaign group, and both have the ability to stop a reconfiguration in its tracks. So, when trying to enact changes, what are your duties?

Early involvement

All NHS bodies proposing a change in services must inform the public of what they propose to do and why; they must give people enough information to enable them to provide informed comments; and they must give them enough time to do this. For significant changes, that requires a full public consultation. You should ensure that you keep your local Overview and Scrutiny Committee informed and involved from an early stage. Commissioners (whose duties are slightly different from providers) should be involving the public at all stages of the commissioning cycle. 

Involving the public is not only a legal obligation: people are less likely to bring a legal challenge if they feel they have been listened to. You are allowed to work up clear proposals before going out to formal consultation, but the public should be involved in the development of those proposals at the earliest stage. Staff working in this field must know the relevant NHS England guidance in this area, namely: ‘Planning and Delivering Service Changes for Patients’ and ‘Transforming Participation in Health and Care’.

Honesty is the best policy

Your consultation documents must make it clear what you are planning to do and why and include details of the potential impact on patients and how you would like to hear from them. Ducking the real reasons for a proposed change, such as the plain financial requirement for a service to close, may seem more palatable, but it will make your consultation misleading and possibly unlawful. The courts have struck down consultation exercises for this reason.

In our experience, if you are upfront about the financial drivers for change, people understand and respect that. They are more likely to appreciate why the proposal has come about and why there needs to a change.

Watch your language

The courts have rammed home the message that consultation is not an adjunct to the rest of your reconfiguration work, and it’s not a tick-box exercise to be gone through before you make the changes you always planned to. You must be very careful to ensure that none of your documents, including internal emails, suggest otherwise. An off-hand comment in an email such as “As we work towards the closure of this service…” won’t seem so throwaway if you receive a Freedom of Information Act request or your files have to be disclosed during legal action. 

Respond and adapt

You must take into account all consultation feedback you receive when making the ultimate decision. However, a consultation isn’t a vote. You are allowed to make unpopular decisions, as long as they are objectively reasonable and you set out clearly and honestly why you have reached your conclusions.

Keeping an open mind throughout the process will enable you to listen and respond appropriately to that all-important public feedback.

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