The law requires commissioners (and providers) to involve the public when making changes to the provision of NHS healthcare. NHS bodies discharge this duty by carrying out consultations. This is an area fraught with difficulty and the potential for legal challenge.
There have been numerous reported cases in the last three years, where commissioners and other public bodies have faced a judicial review brought by individuals or groups angered by service changes. Not all of these have been NHS related – some, for example, relate to cuts in library services.
Readers in the NHS may particularly recall the following cases already in 2013:
R (on the application of Save our Surgery Ltd) v Joint Committee of Primary Care Trusts – relating to specialist centres for paediatric cardiac surgery
R (on the application of Copson) v Dorset Healthcare University NHS Foundation Trust – relating to Mental Health Urgent Care Services reconfiguration
R (on the application of Lewisham LBC and Save Lewisham Hospital Campaign Limited) v Secretary of State for Health (and others) – relating to the Trust Special Administrator appointed to South London Hospital
Each case over the past few years has helped to provide guidance on what “involving the public” really means.
The broader topic is gaining prominence as the government is concerned about the numbers of judicial reviews generally (not just relating to health). A Ministry of Justice consultation has just been launched by Chris Grayling.
Grayling said: “We want to make sure judicial review continues its crucial role in holding authorities and others to account, but also that it is used for the right reasons and is not abused by people to cause vexatious delays or to generate publicity for themselves at the expense of ordinary taxpayers.”
The consultation proposes changing the rules around who has to pay the legal bills for cases so all parties have an equal interest in cutting costs. This could include making applicants who bring unsuccessful cases pay some of the defendant’s bill.
Legal aid funding will be targeted at cases “with merit”, although there is little detail in how these cases would be selected.
The appeals process could also be changed so it is possible for them to be considered by the Supreme Court without first going to the Court of Appeal.
This briefing is not an academic review of the case law. That would not assist hard pressed commissioners trying to ensure that a controversial service redesign is properly administered. This document draws out the central principles from the case law and from published guidance, setting out the ground rules for a lawful consultation and pointing out the “elephant traps” to avoid.
Service changes are always likely to be controversial and even the best run consultation will not prevent that. Social media can quickly whip up a storm and local politicians often find there are votes in proclaiming their outrage about proposed changes. However, a well run consultation will do four things:
It will ensure that your decisions are as well informed as possible. The whole point of consulting the public (ie, those who will use the services you commission) is to ensure that you make better commissioning decisions.
It will reduce the prospect of a legal challenge (which, even if you fight it off, will be costly in time, money and reputation).