It has for many years been a guiding principle in the commissioning of healthcare for prisoners and other detainees that they are entitled to access the same quality and range of healthcare services as the general public receives from the NHS (for example, see Health care Standards for Prisoners in England and Wales, HM Prison Service, 1994). With patient and public involvement a hot topic within the NHS at present, Richard Parker explores the extent to which this principle extends to involving prisoners and other detainees in decisions about the commissioning of their healthcare

In this article, ‘prisoners and detainees’ means people detained in a prison, a court, a secure children's home, certain secure training centres, certain immigration removal centres or a young offenders’ institution.

Patient and public involvement

NHS England is responsible for commissioning healthcare for prisoners and detainees. NHS England is also under a legal duty to make arrangements to involve users of the services it commissions in:

(a) the planning of commissioning arrangements;

(b) the development and consideration of proposals for changes in the commissioning arrangements; and

(c) decisions of the board affecting the operation of the commissioning arrangements (s.13Q National Health Service Act 2006)

Similarly, NHS trusts and NHS foundation trusts are under a legal duty to make arrangements to involve users of the services they provide 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 (s.242 National Health Service Act 2006).

In the case of both commissioners and providers, the legislation provides that involvement of service users in the development and consideration of proposals and operational decisions is necessary where such proposals/decisions would, if implemented, have an impact on the range of services available or the way in which they are provided. However, the requirement to have arrangements to involve service users in the planning of services applies continuously, regardless of the potential impact of such plans.

There is no exception to the above duties to involve the public in case of prisoners and other detainees. Therefore the duties apply in the same way as they do in respect of services provided to the general public as part of the NHS.

What is public involvement?

Public involvement is about involving people in the planning, commissioning and transformation of the NHS services they use. Consultation is one of a number of ways in which they can be involved. Other types of involvement include providing information, engagement, participation and co-production. What nature and degree of involvement is appropriate will depend upon what is fair and proportionate in the circumstances.

The people who need to be involved are ‘individuals to whom the services are being or may be provided’. On one hand, prisoners and detainees are a captive audience and relatively straightforward to identify. On the other hand, populations within prisons and other relevant settings are constantly changing and identifying and engaging with potential users of the service is a significant challenge.

If consultation is undertaken, to be lawful, it must comply with the Gunning principles. These principles ensure that consultation is meaningful and capable of influencing decisions taken about the commissioning and provision of services. While the principles were developed by the courts within the context of what constitutes a fair consultation and will not apply to every type of public involvement activity, they will still be informative when making arrangements to involve prisoners and other detainees.

The Gunning principles – a prescription for fairness (R -v- Brent LBC ex p Gunning (1985) 84 LGR 168)

  1. Consultation must be undertaken at a time when proposals are still at a formative stage;
  2. Consultation must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response;
  3. Adequate time must be given for this purpose; and
  4. The product of consultation must be conscientiously taken into account when the ultimate decision is taken.

What arrangements need to be made?

The legal duties highlighted above require commissioners and providers to ‘make arrangements’ to involve prisoners and other detainees. The duty is not, therefore, prescriptive – commissioners and providers have considerable discretion in how they go about involving the prisoners and other detainees for whom they are responsible. In practice, any policies, practices or requirements which are established with a view to involving the public are likely to contribute to the discharge of the duty.

In the context of prisons and other secure settings, there are some obvious challenges in relation to public involvement, such as security, access to the internet, language barriers, literacy and low levels of engagement. However, this does not negate the legal duty to make arrangements to involve prisoners and detainees.

Effective arrangements to involve prisoners and detainees could include:

  • Surveys/questionnaires – taking into account potential restrictions on access to the internet, language barriers and literacy
  • Focus groups/workshops – taking into account the unique security issues arising
  • Patient participation groups or representatives – to raise issues and provide feedback on behalf of prisoners/detainees within a particular prison or other secure location
  • Involvement of individuals with lived experience of the justice system in the commissioning process – for example, in the development of service specifications, evaluation of tenders, bidder interviews, contract management and assurance.

NHS England, as the commissioner of healthcare for prisoners and other detainees in England, has in place national arrangements for public involvement, and publishes details of these on its website (Statement of Arrangements and Guidance on Patient and Public Participation in Commissioning, NHS England, November 2015). NHS England has set strengthening the involvement of those with lived experience of the justice system as a key priority for health services in the justice system (Strategic direction for health services in the justice system: 2016-2020, NHS England, October 2016). NHS England has recently published its Framework for patient and public participation in Health and Justice commissioning, which includes guidance and resources to support the involvement of prisoners and other detainees in commissioning.

Locally, commissioners and providers should work together to ensure that they capture and utilise the views of prisoners and other detainees when planning, considering options/proposals and taking decisions about the healthcare services available to them. Commissioners can require and incentivise providers play their part in involving prisoners and detainees, for example, through the use of contractual terms and local Commissioning for Quality and Innovation (CQUIN) schemes.

What about equality?

Commissioners are under a legal duty to have regard to the need to reduce inequalities between patients in respect of both their access to services and their health outcomes (s.13G National Health Service Act 2006). Commissioners and public bodies who provide services are also subject to the public sector equality duty, which requires them to have regard to the need to eliminate unlawful discrimination, advance equality and opportunity and foster good relations (s.149 Equality Act 2010).

To effectively discharge this duty it is often necessary to carry out equality analysis, including impact assessments and consultation with individuals with protected characteristics. The consideration of equality therefore naturally forms part of any public involvement exercise. Decisions in relation to services within some secure settings are particularly likely to disproportionately affect people with a protected characteristic (e.g. age in a young offender’s institution, race in an immigration removal centre).

What are the risks of getting it wrong?

Commissioners and providers of health services to prisoners and other detainees should not underestimate the risk of such individuals challenging their rights through the courts. In recent years the media has covered number of high profile challenges by prisoners, including the blanket ban on voting and the legal aid cuts.

As with any other user of NHS services, a prisoner or detainee (perhaps with support of a relevant charity or lawyers) could challenge a decision affecting the services they receive if the arrangements for involving users were inadequate or were not complied with in practice. Judicial review challenges are costly, time-consuming and may bring unwanted publicity.

It is essential to ensuring the delivery of service changes that commissioners and providers of health services do not pay lip service to involving prisoners and detainees but are able to demonstrate that they have in place adequate arrangements to involve them. While the involvement of the users of NHS services is a laudable aim in its own right, failure to do so can delay or even fatally undermine plans to transform services.