ON APRIL 1 this year, new legislation comes into force designed to strengthen the duty of NHS bodies to involve and consult patients and the public about changes to health services. The Department of Health (DH) says, rather gushingly, that the “new relationship with the public is long-term, inclusive and enduring”.
There is already legislation in place which requires primary care trusts (PCTs) and other NHS bodies to involve and consult patients and the public in the planning for provision of services, proposals to change services or the way services are provided. These have been in force for several years and are found in section 242 of the NHS Act 2006. There have been a number of cases in the higher courts where PCTs have been found to have acted unlawfully by failing to consult before, for example, closing wards or reorganising GP services. However, the duty on the NHS bodies is only to listen and take into account the views of local groups, patients and the public. Even if, overwhelmingly, the local community does not want, say, a local A&E department to close, so long as a PCT can show that it has considered these views it may well be able to take the decision to close in any event. Does the new section 242, now strengthened by the Local Government and Public Involvement in Health Act 2007, do anything to change this?
The answer, in reality, is not very much. There is clarification that all NHS bodies must sufficiently consult potential service-users over planning and changing services and this includes the manner of delivery and the range of services available. Strategic health authorities (SHA) must consult when developing strategic frameworks. And when consultation takes place each PCT and SHA must prepare a report for the DH, which explains the consultation process and the influence the results have had on commissioning decisions.
This duty to report may well focus minds on ensuring that a fair and rigorous consultation process is undertaken. And it will give the DH more of an overview about national trends. Guidance issued by the department enthuses that PCTs will “proactively seek and build continuous and meaningful engagement with public and patients to shape services and improve health”. But cynics will note that so long as a PCT is able to explain why it disagrees with public opinion there is nothing to stop it legally carrying on with its plans. As is often the case, NHS bodies will be able to trump the wishes and choices of the public by playing, often with impunity, the lack-of-resources card.
SHAs and PCTs will have to follow the government guidance – to be issued in the spring – when consulting on development and change. This will need to be robust indeed to give these enhanced powers any real chance of making a difference.
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Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers E-mail: s.cragg@doughtystreet.co.uk