Public consultation and engagement: at a glance

  • Consultation and engagement is a legal requirement and an essential tool to planning integration, where proposals will have an impact on the way services are delivered or on the range of services available
  • Consultation must start at an early stage and involve the whole spectrum of service users and other stakeholders
  • Honesty and transparency about the drivers for proposals and their likely impact is vital, and can result in consultation being a positive tool for all involved

Why this area is important

Consultation and engagement is a legal requirement where changes in models of care, service re-configuration or re-provision are being planned. There are specific statutory requirements on both NHS providers and NHS commissioners as to consultation and engagement with the public, in sections 13Q, 14Z2 and 242 of the National Health Service Act 2006 (“2006 Act”). Section 244 of the 2006 Act and the Regulations under it require consultation with local authorities about proposed changes to health services in their area. In addition, consultation is essential to enable health bodies to demonstrate compliance with their duties under the Equality Act 2010, and other general duties imposed on CCGs and NHS England by the 2006 Act.

Ignoring the need for consultation and engagement, or delaying or short-circuiting the process of consultation, will greatly increase the potential for legal challenge to proposed service changes. There can be no doubt as to the appetite for such challenges where there are strong objections to proposals.

The recent ‘Healthier Together’ judicial review challenge (to the proposed closure of an A&E department as part of a wider integration project within Greater Manchester) is just the most recent example. If such challenges succeed, they will significantly disrupt planned changes and delay the improvements and cost savings they sought to achieve. Even where a challenge does not succeed, as in the case of Healthier Together, the process is costly in terms of management time and disruption to timetables, and
may fracture local relationships and reduce potential savings.

Where it can be demonstrated that proposals have been presented in a timely, transparent and inclusive way and that stakeholders’ views have informed the process, people are far more likely to buy-in to the proposals and any challenge is much less likely to succeed.

Key issues

Consultation and engagement are about explaining the aims behind proposed changes and setting out how it will work in practice. It provides a chance to test out the logic of the proposals and their impact on local people.

As such, it can be a positive tool for commissioners and providers to explain why the changes are considered necessary, and to emphasise their aim of improving care and maintaining effective local services. The process of preparing for consultation provides an opportunity for the NHS body to analyse and self-challenge the robustness of their proposals. With an increasing focus on outcomes measures on service delivery, consultation also provides a valuable chance to identify appropriate measures, explore how outcomes can be identified and prepare the public for the need to capture and report on particular data.

Health bodies can be nervous about engagement with the public. It has to be acknowledged that the public can react badly to proposed changes, particularly where this involves a closure of an existing facility. However, it is essential to engage with the public at a formative stage and to be honest about the drivers for change. For example, that changes are necessary to save money and not just about improving care. It is unwise to gloss over elements of a plan for fear that they might generate a negative public reaction, or to delay consultation until it is more difficult to change direction. If the public are concerned about a proposal they will be particularly alert to any lack of clarity about its purposes, or any indication that the decision has effectively already been taken.

Even if some form of challenge is inevitable, it is essential to use consultation to reduce the legal points available to challengers and to support rather than detract from the substantive case for change.

Potential solutions

Don’t think of consultation as a one-size-fits-all concept, which can only mean a single, comprehensive public consultation document. Consultation and engagement can take a wide range of forms. Depending on the nature and scope of your proposals, a series of different engagements may actually be more appropriate than one large consultation. Plan an engagement programme that reflects the make-up of your stakeholder groups to generate useful information at relevant points in your planning process.

Early engagement on specific issues can provide new information about a demographic: what the population is and where its needs and priorities lie, or likely concerns about a proposal. This can be used to make later consultation activities more effective in explaining proposals and reassuring the public about their purpose and impact.

Engaging with patients and the wider public is crucial, but they are not the only stakeholders to consider. Clinicians are a key group whose views have a huge influence on the public and on the courts, and have shown themselves to be prepared to challenge organisational decisions (the Healthier Together judicial review was initiated by clinicians). Early engagement with staff can forestall significant issues later, both internally and with other stakeholders.

Similarly, do not forget to involve local authorities at the right time. In one recent case, the legal challenge to a service change by an NHS Trust was brought by the local authority itself, which believed it had not been appropriately consulted and given the opportunity to carry out its review and scrutiny functions. The judicial review proceedings were settled and withdrawn, but this took time and expense and had the potential to affect the public’s view of the plans.

Use local media wisely. In London, bodies involved in an integration project have used local radio and newspapers to disseminate information about plans to share patient data.