In advance of Landmark’s upcoming seminar, Legal Issues Arising out of Changes to NHS and Social Care Services: How lawfully to close a hospital or care home or to challenge an unlawful closure, this blog post briefly explores the crucial, and often-neglected, role local authorities have to play in scrutinising substantial changes in the delivery of health services in their areas.
It is hardly controversial to remark that the NHS is struggling to cope with its ever-increasing financial problems. In response, there is a growing consensus that “place-based planning” and integrated models of health and social care are the money-saving solution. This consensus is reflected by the proposals contained within the hugely controversial “Sustainability and Transformation Plans” (STPs). Indeed, many STPs contain plans to reduce the number of acute hospital sites or close GP surgeries in an attempt to save funds and focus resources.
When proposing to enact such major service changes, both NHS England and Clinical Commissioning Groups have clear patient involvement and consultation duties under sections 13Q and 14Z2 of the NHS Act 2006 respectively. Reflecting these duties, NHS England guidance promises:
“We must put citizen and patient voice absolutely at the heart of every decision we take in purchasing, commissioning and providing services.”
When instigating a major service change, such as a hospital or surgery closure, it is vital that CCGS engage and consult patients at an early stage. Failures to discharge consultation duties are increasingly litigated (see, for example, Keep Wythenshawe Special Ltd & others [2016] EWHC 17 (Admin)).
However, CCGs should not forget that a vital part of the consultation framework involves consulting not just the patients themselves, but local authorities also. It is local authorities, and their democratically elected councillors, that constitute the “citizen voice” referred to in guidance.
What legislation underpins the requirement to consult local authorities?
Section 244 of the 2006 Act creates a review and scrutiny function for local authorities and the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 were made pursuant to section 244(2)(c) of the 2006 Act.
Regulation 23(1) of the Scrutiny Regulations places a duty on a CCG to consult the authority when it has under consideration any proposal for a substantial development of the health service in the area of a local authority, or for a substantial variation in the provision of such service. It is highly likely that a hospital closure, for example, would constitute a “substantial variation” on which the local authority should be consulted.
What does this mean for local authorities being consulted on a major service change?
What are some of the key factors CCGs and commissioners need to consider?
These are just some of the factors that commissioners and local authorities should be live to when consulting on a major service change such as a hospital closure. Local authority scrutiny is a key part of the process and has the potential to sway the outcome of a decision; it should not be neglected.