Reconfiguring Health Services

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Reconfiguring Health Services

Published On: 8 July 2015

As Clinical Commissioning Groups (CCGs) move to reconfigure services and trim budgets, it is relatively easy to fall foul of the legislation enshrined in Section 14Z2 (2) of the NHS Act 2006, as amended by the Health and Social Care Act 2012. Bristol CCG discovered this last summer when it had to compromise a court case brought by campaign group Protect our NHS, amid plans to decommission some services.

This resulted in it having to pay substantial costs to the Claimant. Other legal challenges are likely, particularly in relation to high-risk areas such as the closure of A&E, maternity, and learning disability units, or the relocation of drug and alcohol, and mental health/dementia services, as these are likely to generate strong public feeling.

A judicial review can prove expensive. Apart from legal fees – plus claimant’s costs if the case is lost – these cases will take up a considerable amount of management time. And, if a judicial review is permitted, the proposed change to services will have to be deferred until after the court adjudicates on the issue. This may be costly as it could have an adverse impact on the organisation’s ability to achieve its deficit plan.

In addition, even if the case does not go to court, the attendant reputational damage and loss of public trust can be difficult to repair.

In order to avoid a legal challenge, CCGs will need to make sure they are actively engaging with their communities in relation to their commissioning decisions. Some commissioning decisions are likely to require a formal public consultation to be undertaken by the CCG and it will be particularly important that these can withstand judicial scrutiny.

So how can CCGs minimise their risk of a successful legal challenge?

Know your community

Establish good working relationships with your local Healthwatch, Health and Wellbeing Board, Health Overview and Scrutiny Committee, and other specialist groups.

Consult at a formative stage

The consultation must be run, and seen to be run, before decisions have been made. Majority support is not required, but CCGs must be able to show that they have taken account of the views of the public, patients and/or their representatives.

Be proactive

Get stakeholders on board early. Seek legal advice, especially when undertaking a formal public consultation, on document management, the wording of the consultation paper and the final papers upon which the CCG will base its decision.

Communicate clearly

It is critical that clear information is given concerning the CCG’s commissioning options so that the public or their representatives can respond. Explain all options clearly, in plain English, and present them objectively. If money is an issue, be upfront about costs and their impact on resources and services. But any figures must be based on sound calculations that will withstand public scrutiny. Consider whether your consultation document needs to be in different languages, or in easy-read versions or communicated in ways that engage hard-to-reach groups or minorities who might be affected by any change.

Good document management is essential

Keep minutes of all internal and external meetings; email correspondence; the evidence used to inform the proposed changes; the engagement and consultation process that has been undertaken, etc. All these documents should be readily accessible: if the organisation faces a legal challenge, it will need to comply with a tight procedural timetable for disclosure of evidence. It is also important to make sure that all documents are suitable for public scrutiny.

Comply with equalities legislation

In addition to ensuring proposed changes, improve quality and patient choice, and do not create health inequalities. Plans must also take account of the public duties of the Equality Act 2010 (section 149). This legislation states that when “performing any function, including making decisions about service provision, a public authority must ‘have due regard’ to the need to: eliminate unlawful discrimination, harassment and victimisation; promote equality of opportunity; and foster good relations between people with and without characteristics protected by the equalities legislation. These ‘protected characteristics’ are gender, race, disability, age, sexual orientation, religion or belief, pregnancy and maternity, gender reassignment and marriage.”

Be open and transparent

Set out clear timeframes at every stage of the process.

To discuss the issues raised in this article, please contact Belinda Dix on +44 (0)1962 70 5544 or