Hospital closures and major health service…

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?

Essentially, regulation 23 of the Scrutiny Regulations allows local authorities to provide feedback on any proposal for major change, including making recommendations.
As well as providing feedback on the proposal, regulation 23(9) gives the local authority a power to refer the proposal to the Secretary of State in certain circumstances, including where“the authority considers that the proposal would not be in the interests of the health service in its area”. This is an important power, and one that local authority scrutiny committees are increasingly voting to use (see a very recent example in Huddersfield).
However, local authorities should be aware that if they have made a recommendation on the proposal as part of their feedback, regulation 23(5) envisages that reasonable steps must be taken to reach an agreement on implementing the recommendation before a local authority can rely on the power to refer to the Secretary of State.
Finally, local authorities should note that this consultation process takes place within a certain timeframe. A CCG or responsible commissioner should, at the outset, inform the local authority of the date by which it intends to decide whether to proceed with the proposal for major service change and the date by which it requires the authority’s feedback. These timeframes should be adhered to.

What are some of the key factors CCGs and commissioners need to consider?

Local authority consultation should form part of an integrated process, with feedback from both patients and the local authority scrutiny committee feeding into the decision on the relevant closure.
Consultation of the local authority should not be an afterthought; it should be conducted with sufficient time for the feedback to be taken into account in a meaningful and considered way. This is particularly the case in the context of hospital or surgery closures.
CCGs would be wise to err on the side of caution in determining whether a service change is “substantial” and thus requires the local authority to be consulted or not. Some local authorities have developed assessments or toolkits for assisting commissioners with this issue.
CCGs should have regard to the Department of Health guidance on effective local authority scrutiny when carrying out their consultation (see here).
Finally, the requirement to consult local authorities does not apply under regulation 23(2) of the Scrutiny Regulations if a decision has to be taken without allowing time for consultation because of a risk to safety or welfare or patients or staff. CCGs should be careful that they have adequate justification if they rely on this regulation.

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.