The NHS has a new duty to involve the public, one that could apply wherever new services are proposed or existing ones changed.
The duty was introduced on 3 November 2008, because, the government says, “NHS managers have not always been clear when they have to involve people and how best to do this.”
The changes realise a pledge made by Lord Darzi in May of this year. In his Next Stage Review, he told the public: “You will be involved ... Those affected by proposed changes will have the chance to have their say and offer their contribution. NHS organisations will work openly and collaboratively.” They are also consistent with the current NHS operating framework, which says “the NHS needs to get much better at listening and responding to the patients who use our services, the staff who provide them and the citizens who fund them”, and with the vision for World Class Commissioning announced a year ago.
The new duty isn’t the first, of course. Section 11 of the Health and Social Care Act 2001 dealt with public consultation, and its provisions were replicated in section 242 of the National Health Service Act 2006. (NHS Act) The new, strengthened duty has been introduced by the Local Government and Public Involvement in Health Act 2007, which inserts section 242(1B) to the 2006 Act.
The new sub-section says that in England, every SHA, PCT, trust or foundation trust should involve the public when it plans its services, proposes to change the way they are delivered or makes decisions that affect their operation. (NHS Act, s 242(1B)) This duty will apply to services the NHS body itself provides, and also to those provided on its behalf or at its direction. (NHS Act, s 242(3)) And it is for the benefit of ‘users’ that the change has been made. That means anyone who is using, or may use, the services in question. (NHS Act, s 242(1B) & (1F))
The circumstances in which the new duty will apply are considered in guidance published alongside it. They include where mental health services are reconfigured across a SHA or PCT area; where plans are made to provide hospital services from a different site; and where changes are made to the opening hours of a family planning clinic.
As to what ‘involvement’ means, the guidance says: “Think about proportionality and appropriateness, understand and use a spectrum of involvement, and know when to use the different activities which range from giving information through to active participation in planning the provision of services.”
Because of the 2007 Act, the NHS Act now includes a second new duty: to report on consultation. The government says, “the NHS does not always tell people what action they have taken in response to feedback”. This should change.
From April 2010, each SHA and PCT will have to publish a report, setting out its past and future consultations about commissioning and any influence they have had. (NHS Act, ss 17A & 24A) Directions made by the Secretary of State require the first such report to be published between April and September 2010 and to cover commissioning decisions in the previous twelve months.
Unlike the duty to involve, however, the duty to report applies only to primary care trusts and strategic health authorities that commission health care services; not to NHS trusts or NHS foundation trusts.
The guidance on the new duties is detailed, if a little convoluted. The government acknowledges, however, that although the NHS bodies must have regard to it, they will not be bound by it and may depart from it if they have good reasons for doing so. (In fact, case law says that any departure will have to be based on ‘cogent’ reasons, but it isn’t clear how they might differ from good reasons.)
The new duties are likely to be included in the new NHS Constitution, a consultation on which has itself just closed. The new constitution is due to come into effect in 2009. Before then, the government says SHAs, PCTs and trusts might: review the information they already have about community needs and ensure they are making the best use of it; consider the groups and individuals that have been consulted in the past and who should be consulted in future; think about what they want from future involvement, how it can be imbedded in their organisation and whether it can be linked to work on joint needs assessments; and decide what resources they will need in order to comply with their new duties.
