(Apologies to non anoraks – but this is important!)

There has rightly been a lot of excitement about the proposals to extend the powers granted to Trust Special Administrators; powers which could then be used to bring about changes to services (known as reconfiguration) without proper consultation or engagement with those affected.

Few appear to be aware that the rights we used to have around reconfiguration went some time ago when the Health & Social Care Act 2012 was passed into Law in April.  As with a lot of the arguments about Health & Social Care Act the complaints at the time were simply ignored.  Here is how.

Pre 2013 there was a duty on the commissioners of services, the Primary Care Trusts, under Section 242 of the NHS Act 2006:-

(2) Each body to which this section applies must make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on—

(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.

 In those good old days there was a lengthy and exhaustive guidance on the process that had to be followed, which would ensure compliance with statutory requirements if done properly. This process was last set out by a letter to the various interested parties (NHS Bodies, Local Authorities, LINKs, Independent Review Panel) in July 2010 when the 4 Lansley tests:

1) Support from GP Commissioners
2) Strengthened Public and Patient engagement
3) Clarity around clinical evidence base
4) Consistency with patient choice.

were added to the 8 step process:

 1) Planning and needs assessment
2) Stakeholder discussions
3) Gateway and National clinical advisory team Reviews of proposals
4) Formal consultation
5) Analysis of consultation responses and decision
6) Referral to Overviews and Scrutiny Committee (OSC)
7) Consideration by Independent Review Panel
8) Implementation  { Steps 6 and 7 would not always be required if the reconfiguration was not questioned by OSC.}

that had been in place previously.

Guidance was enforced by Strategic Health Authorities which made sure Primary Care Trusts followed the rules, using powers of direction over PCTs as in Section 242 (5).  Many in the Department of  Health and outside hated this process as it made reconfiguration difficult and time consuming.  But as we have just seen with the huge (and contested) reconfiguration of acute services across NW London it is possible to get through the process – in this instance leaving the final say to the Secretary of State.

To be fair there was some common sense proportionality applied, in that small changes could be carried out with less robust arrangements and consultation and involvement could take various forms, but Section 242 was the LAW and so could be the basis for Judicial Review for non compliance.

We now have Health & Social Care Act and Clinical Commissioning Groups  leading reconfigurations and no strategic bodies of any kind and Section 242 does not apply.  The Health & Social Care Act Section 26 says something very different.

14Z2 Public involvement and consultation by clinical commissioning groups

 (2) The clinical commissioning group must make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways)—

(a) in the planning of the commissioning arrangements by the group,
(b) in the development and consideration of proposals by the group for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and
(c) in decisions of the group affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact.

(3) The clinical commissioning group must include in its constitution—

(a) a description of the arrangements made by it under subsection (2), and
(b) a statement of the principles which it will follow in implementing those arrangements.

 Most Clinical Commissioning Groups  have “complied” with (3) by putting into their Constitutions some motherhood and apple pie about Patient Reference Groups – which are effectively selected by the Clinical Commissioning Group itself and sometimes only on an “as and when needed” basis.  This fiction is then rubber stamped by NHS England. This allows Clinical Commissioning Groups to claim they meet the requirements and so they need not have ANY wider public and patient consultation. They go further and state that the existence of this general purpose group also allows them to meet statutory requirements which place a duty on Clinical Commissioning Groups to promote the involvement of patients and the public.  One day we must see what a Judge makes of this!

What about the NHS Constitution?  That makes clear about consultation:-

 The system of responsibility and accountability for taking decisions in the NHS should be transparent and clear to the public, patients and staff.

 The NHS Commits to:-

 to make decisions in a clear and transparent way, so that patients and the public can understand how services are planned and delivered

  • to engage staff in decisions that affect them and the services they provide, individually, through representative organisations and through local partnership working arrangements.

Well Section 26 of  Health & Social Care Act  sets out:-

(1) Each clinical commissioning group must, in the exercise of its functions—

(a) act with a view to securing that health services are provided in a way which promotes the NHS Constitution, and
(b) promote awareness of the NHS Constitution among patients, staff and members of the public.

 How commissioners should interpret what the constitution says is set out at some length in Annex B to the Procurement Guide for Commissioners of NHS-Funded Services making very clear staff and patients should have high expectations about genuine involvement throughout any process.

So far as Clinical Commissioning Groups  are concerned any kind of engagement, especially with affected staff and elected representatives does not apply to them.  It is not within the scope of their Groups.

It is part of the widespread confusion that the reorganisation under   Health & Social Care Act has inflicted that nobody appears to have any idea whether the 2010 Reconfiguration Guidance does or does not apply. It is clear from the evidence of what  Clinical Commissioning Groups are actually doing that they think it does not; as long as they talk to some ill defined group they are free to do whatever they choose.  They are not accountable to anyone and have no need to get authorisation whatever the scale of change they plan.

Why is this important?

Across the country many Clinical Commissioning Groups are engaged on procuring NHS services driven by another insanity – S75 of the   Health & Social Care Act.  Clinical Commissioning Groups are looking to procure through Competitive Tendering  £100m’s of NHS funded services and they feel free to exclude the “stakeholders” from this process.  They can do all this behind a cloak of commercial confidentiality which excludes everyone from knowing what is proposed for our money!  They may, or may not, decide to consult more widely once they have decided on who gets the contract (for all that will be worth) but many appear to think they don’t need to do that either. Oh, and forget the staff.

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  1. Excellent topic.

    Can you refer to where in 2012 Act the 2006 Act S242 is repealed? It seems to still apply, but only to NHS Trusts and FTs, not to commissioners (odd?).

    It also appears that the powers for scrutiny (2006 S244) are maintained in the 2012 Act and (the Govt argued):

    I can’t see any regulations on this post-2012 so the old regs still apply?

    Anoraks Anonymous.

  2. Meant to say …and the powers to refer to SOS still remain.

    Have any Labour LAs tried to use scrutiny powers to block reconfigs (or privatisations)?

    Your point about no duty to consult still stands, even if the power to refer is there as a backstop of some sort.

  3. I think this post is a rather unhelpful as it suggests we have lost more power over consultation already, than we have – so weakening the arguments to protect what we still have. Ie, the current very live battle against the ‘hospital closure clause’ (which allows TSA powers to close even well run nhs provision in financially sustainable trusts with barely any consultation).

    Richard Bourne suggests that section 14Z2 in the Health & Social Care Act is weaker than the previous consultation requirement, section 242, and that CCGs may well be able to get away with something very minimal here already.

    Richard’s view here does NOT reflect what I was told by the leading law firm in this area who said that there was little difference in the consultation requirements – until now, and the hospital closure clause currently tagged on to the Care Bill, which we need to fight, not muddy the waters!

    i am inclined to believe the lawyers i spoke to as this is the law firm who have won lots of cases on NHS consultation requirements – though every time they won, the last labour government watered down the requirements still further! But there was no further watering down on this specific point in the HSCA as far as they see (though obviously HSCA removed democratic accountability in a whole host of other ways – including a Secretary of State no longer responsible for securing a comprehensive health service).

    Furthermore – as Joe correctly states – the Health & Social Care Act did NOT remove the rights in relation to consultation and scrutiny of local democractically elected representatives (ie, councillors on the overview and scrutiny committee). But these rights *are* removed under the hospital closure clause plans.

    The question about the status of the 4 tests is one that I would like to see greater clarity on myself, however. But arguing that Hunt could close NW London so we’re not losing much is misleading – it has taken years to get to this point – quite rightly so when it’s so important. The fast track hospital closure clause they are trying to introduce, makes this all so much easier in future.

    Lastly, the rights under the NHS constitution are unhelpfully glossed over – they may not apply to CCGs (I’m not sure) but they certainly apply to trusts.

    Just as with the Section 75 battle itself, it is unhelpful to have voices suggesting that the law is already worse than it is, when we are trying to stop it getting any worse, right now..

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