Philip Grey, a regulatory lawyer at national law firm Mills & Reeve, has explained in
the Guardian Healthcare Professionals Network what NHS bodies must do to fulfill their
legal duty to involve the public at the planning stage of proposed reconfigurations, in
the development of specific proposals and in the decisions.
You can help build the case for a challenge to the Strategic Review by reading the list of what NHS bodies must and must not do and telling us if you are aware of any ways they have deviated from these requirements.
Philip Grey wrote:
“The duty is not to consult; it is to involve the public. Consultation is one way of doing so and will be needed for doing so and will be needed for any large-scale change. The exact nature of the consultation is down for you to decide, but here are some crucial dos and don’ts.”
His list of dos and dont’s is very handy for campaigners, because it tells us
what to look out for if we’re considering whether there is the basis for making a legal
challenge to the Clinical Commissioning Groups and CHFT, SWYFPT and Locala.
Help Save Calderdale and Huddersfield Hospitals build a legal case to challenge the Strategic Review
If you know of anything that the CCGs, CHFT, SWYFPT and Locala have done or have failed to do that ticks any of these points, please tell us.
This is what Philip Grey told NHS organisations about their legal do’s 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
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.”
Here’s Philip Grey’s article