The dos and don'ts of NHS reconfiguration

Many of the proposed changes to health services are hugely controversial. How can NHS bodies ensure a legal challenge doesn't stop a reorganisation in its tracks?
Stop lights
A legal challenge can stop a reconfiguration in its tracks, leading to months of delay and legal costs. Photograph: Eric Lafforgue/Gamma-Rapho via Getty Images

Across the country, commissioners and providers face escalating demand for services, increasing scrutiny of quality and flatlining funding. From root-and-branch reviews of acute, community and mental health services to proposals to relocate or close a single service, clinical commissioning groups, trusts and foundation trusts are making daily decisions that will shape the services available to their communities.

Many of these changes can be hugely controversial. It takes only one determined individual or a small number forming a campaign group to bring a legal challenge. Whatever the outcome of that challenge, it can stop a reconfiguration in its tracks, leading to months of delay and significant legal costs.

The most common basis for a challenge is to argue that the NHS body failed to consult or, if it did consult, didn't do it properly. The duty to consult may be well known, but it is not always well understood. Being fully aware of your obligations in this area and acting on them will not only help you to avoid controversy, but will also improve the quality of the decisions you make.

Most importantly, understanding the duty to consult will reduce the chances of your organisation ending up in court. People are less likely to want to take legal action if they know that they are being listened to. In addition, if you have complied with your duties, they are less likely to be able to find a basis for a legal challenge. Finally, if you are challenged, being able to show you knew your obligations and tried hard to meet them will give you the best chance of success.

The prospect of legal challenge is not theoretical. We have seen numerous high court and court of appeal cases in the past two years. NHS bodies have seen their reconfiguration plans put on hold for months, faced significant legal spend and endured negative local publicity, damaging relations with their communities.

So, what are your duties and how do you comply with them? All NHS bodies proposing a service change must involve the public at the planning stage, in the development of specific proposals and in the decisions. The duty is not to consult; it is to involve the public. Consultation is one way of doing so and will be needed for any large-scale change. The exact nature of the consultation is down to you to decide, but here are some crucial dos and don'ts.

Start planning your engagement strategy as soon as you begin any discussions about a proposed service change, big or small.
Be very clear in public documents about what you are planning and why, what it will mean for patients and why and how you want to hear from them. You must give people enough information to enable them to make meaningful comments and suggestions.
Keep an open mind. You can work on recommended options to present for consultation but you must be prepared to listen to feedback and be open to the possibility of changing your mind.
Involve your local authority overview and scrutiny committee and the health and wellbeing board early.
Become familiar with relevant NHS England guidance: Planning and Delivering Service Changes for Patients and Transforming Participation in Health and Care.
Remember that consultation isn't a vote. You're allowed to make unpopular decisions but will need to be very clear about why you made them.
Take legal advice if a change will be controversial. You are likely to need your lawyers less if you talk to them early.

Hide or spin the reasons for a proposed change. The courts are very clear on this: if the reason you're proposing something is financial, you must say so. Patients will assume this is the reason for any proposed closure or reduction and will appreciate the honesty.
Make assumptions, even in internal emails. A throwaway line saying something like "as we move towards the closure of the service" may well become public if you receive a Freedom of Information Act request, or if the court orders disclosure of your files. Try telling a high court judge you hadn't prejudged matters if she reads an email like that.
Forget Andrew Lansley's "four tests" – they're still out there and the courts have confirmed that they still matter.
Start a consultation in the buildup to an election unless it is essential to do so.
Make promises without very careful thought. Public bodies are expected to keep promises and the courts can make them do so.

Philip Grey is a regulatory lawyer at national law firm Mills & Reeve
