On 3 November 2008 changes to the consultation duty placed on SHAs, PCTs, NHS trusts and NHS foundation trusts come into force.

Section 242 National Health Service Act 2006 sets out the consultation duty (formerly known as the section 11 duty). Compliance with this duty has been the subject of a number of high profile legal cases in recent years. As a result, the amendments to the legislation seek to clarify and supplement the existing provisions.

From 3 November the duty to consult patients and the public will continue to apply, as before, in relation to:

  •  the planning of the provision of services;
  •  development and consideration of proposals for changes to the way in which services are provided; and
  •  decisions made which affect the operation of services.

However, in relation to the second and third bullet points above, a new provision within section 242 clarifies that the duty to consult applies only if the implementation of the proposal, or the decision (if made), would have an effect on:

  •  the manner in which services are delivered to service users; or
  •  the range of health services available to those service users.

In addition, there is a new duty in section 242(1G) which requires SHAs, PCTs, NHS trusts and NHS foundation trusts to have regard to guidance given by the Secretary of State as to the discharge of the consultation duty, including guidance as to when or how often consultation must be carried out and the form of that consultation. A further new duty is placed specifically on SHAs and PCTs by new sections 17A and 24A (respectively) of the NHS Act 2006. This is the duty to report to the Secretary of State on:

  •  the consultation carried out or proposed to be carried out before making commissioning decisions; and
  •  the influence that the results of the consultation have on commissioning decisions.

Directions from the Secretary of State will detail the periods and matters to be covered, the form and content of reports and requirements as to publication. As regards the reporting duty placed on SHAs, those directions can also specify particular matters in relation to which reporting on consultation will be required.