Institute welcomes new NHS Legal duties Guide
NHS England and NHS Improvement have prepared a new document that will prove really useful to anyone involved in organising significant service changes.
It is called Legal duties for service change: a guide (available to anyone involved in NHS Service Change by request) and its great virtue is that it concisely covers the basics of the law that applies when Managers need to re-configure services. We should declare interest for two of the three authors, Paul Parsons and Caroline Latta, two Institute Associates with practical experience of the legal issues that arise in these situations. The other author is Peter Edwards of Capsticks, a respected solicitor who has specialised in helping the NHS defend High Court challenges.
This document could not come at a better time. The ongoing pandemic obliges the NHS to work creatively and absorb unprecedented pressures. It also makes service changes inevitable, whether temporary, permanent or something in-between. The legal framework within which these must be managed is complex, overlapping and prompts difficult questions. It has been obvious for years that unfamiliarity with these requirements leaves the NHS vulnerable to challenge – and stimulates opposition. It is one of the reasons why the Institute invested so much in the Law of Consultation.
The new Guide makes no attempt to delve into the detailed application of the common law. Its focus instead is on the legislative duties and the way in which a case for change has to be developed and discussed well before the consultation phase. Any significant reconfiguration has to observe the provisions of various NHS Acts and involve patients and the public in the process. But it must also conform to the requirements of local authority health scrutiny arrangements, with the risk that Councils can refer disagreements to the Secretary of State. Moreover, all these activities must observe the provisions of the 2010 Equality Act.
The Guide brings together all these disparate strands of requirements, with just sufficient detail to provide genuine help for public engagement or communications professionals. The aim is not to eliminate the need for legal advice. It is to equip Managers and their teams to work on change proposals with sufficient confidence and without having to refer to lawyers at every turn. Alongside the well-established and comprehensive Guidance document – Planning, assuring and delivering service change for patients, the new Guide fills an important gap and is very welcome.
More is needed, however.
The types of change likely in the coming years will be more radical, and the need to persuade and reassure citizens and local communities will be paramount. Right now, social distancing is limiting the ways in which the legal requirements are being met. This runs the risk of marginalising some seldom-heard groups, and at a time when local communities are more conscious than ever before of the importance of their local health and wellbeing services. The Guide will increase awareness of the legal requirements. It may, however, fall to the Institute to offer training and guidance in how to apply this demanding regime of obligations in the pressurised atmosphere of managing change in a cherished public service.