Readers will recall that back in October 2012 issues arose due to incorrect delegation of approval functions in respect of the Mental Health Act 1983 by four strategic health authorities (SHAs). We reported on this in our November edition of Health Legal Update.

On 5 February 2013, the DH published Dr Geoffrey Harris’ review into how the irregularities had occurred.

Dr Harris is of the view that there were two high level principal reasons why SHAs put in place technically irregular approval functions.

The first was that SHAs did not appear to have operated on the basis of the fundamental principle of public law that, where a function has been conferred by statute on a public authority, the public authority may not further delegate the performance of the function to another body unless expressly permitted to do so.

The second was that SHAs did not overtly or wittingly delegate the functions. They considered that because they remained accountable for the functions, the delegation of the operation of the approval arrangements to mental health trusts through contracts was not legally suspect.

He highlights three factors which led to this situation:

  1. Particularly in 2002, there were strong imperatives to roll forward arrangements for discharging these functions. There was an inevitability that if something had been in place for a long period of time it was less likely to be questioned.
  2. It was not a prominent feature of the culture of the NHS management to take as a starting point the statutory duties and powers of any NHS organisation and understand in detail the implications of their discharge. If NHS organisations had understood and embraced the detail of their statutory duties more closely, it is possible that SHAs would have been more likely to seek legal advice on the regularity of any functions transferred to them. There seems to have been little (if any) legal advice sought on such matters by the SHAs. Similarly, it does not appear that any of the mental health trusts to whom the functions were contracted ever sought legal advice.
  3. Guidance that was issued between 1995 and 2008 was not prescriptive and instructional. In part, as a result, boards did not undertake rigorous audits of the discharge of their statutory functions. There was no corporate focus on assuring the legality or otherwise of contracts or other arrangements.

In Chapter 7 of his report, Dr Harris suggests a system is established in which four levels of assurance are operated:

  • Clear and secure location of responsibilities
    • There should be no orphan functions
    • All organisations taking on transferred functions and receiving new ones should have a full understanding of them
    • NHS organisations should themselves take steps, drawing on legal advice where appropriate, to ensure they fully understand any limitations
  • Authority to exercise powers and duties
    • It is vital that any DH or NHS body that plans to delegate a function or to take steps that might constitute delegation considers fully whether it has the legal and procedural authority to do so
    • Any NHS organisation which is being contracted to carry out all or part of a statutory function should take steps to ensure that it has the legal authority to enter into such contractual or other arrangement
  • Capability and capacity
    • Organisations must be resourced and equipped for the work
  • Continuing audit
    • It is vital that there is periodic audit of discharge, without which there is a risk that any problems with the effective, efficient and legally compliant delivery of statutory functions will neither be identified nor dealt with

Dr Harris also recommends that:

  • The DH and statutory bodies use their governance statements to confirm that any arrangements in place have been checked for irregularities and are legally compliant
  • Receiver organisations should also confirm that they have carried out due diligence on new functions and have established legally compliant arrangements for discharging them