New decision requires careful interpretation

It is not a loophole …but there are times when a service change can avoid a consultation.

This is if one adopts a strict interpretation of the well-known Section 14z2 of the 2006 NHS Act (as amended) which converted the previous ‘duty to consult’ into the ‘duty to involve (whether by being consulted or provided with information or in other ways)…’

In practice, the NHS has normally and wisely refrained from using this ‘get-out’ to avoid consulting patients and the public. It noted the perils of upsetting local communities by seeming to impose major changes upon them without an adequate process of dialogue, and calculated that it is not worth the trouble. In any case, Ministers have been particularly averse to the inevitable political flak in Parliament, and NHS Guidance has unequivocally recommended a consultative approach throughout the service change process.

In recent days, the High Court handed down a judgment in the case of Glatter v NHS Herts Valleys CCG and West Herts Hospitals NHS Trust [2021] EWHC 12 (Admin). The Judge rejected claims that the NHS had unlawfully decided against building a new hospital in Watford. The process of options development had been run by Managers with public and patient involvement achieved through some public meetings and a Stakeholder evaluation panel, which included Healthwatch and patient representatives alongside local authorities, voluntary organisations, clinicians and managers. This was sufficient to satisfy the statutory requirement, said the Court. Later this week, Institute members will have access to our full commentary on the case (See upcoming Briefing Paper 27: Deciding against a new hospital: The implications of the Glatter v NHS judicial review).  Others may obtain a copy upon request.

The amount and nature of pre-consultation engagement has always been a finely balanced judgement call. Without doubt, more is better, but it is seldom in anyone’s interest to produce a fait accompli – even with strong support from community voices. What went wrong here – from the claimants’ viewpoint – is that the prospect of a new hospital was ruled out with minimal consultation. A cherished vision that had been nurtured over many years by both campaigners and clinicians was seemingly dashed without a sufficiently informed and transparent debate.

The Judge realises this. In a remarkable passage, he laments the history in language which befits a politician or journalist expressing an exasperation with which many will identify:

At paragraph 66…

‘What is striking about the history is that no major decision on reconfiguring service provision has been implemented during the whole of the period from 2003 to the present. The process of appraisal, discussion both in public and private, evaluation of options, bidding for funding and then withdrawing or revisiting proposals, has been going on for nearly two decades without reaching any conclusion.

67. During that period, the wording of the applicable statutory provisions has changed, though I do not need to go through the detail of the changes. The hospital estate, especially at Watford General, has evidently deteriorated further. The amount of funding available was probably relatively generous in 2003, seems to have dipped sharply after 2010 and may now be going up again.
68. My impression is that each time a decision is close, the goalposts move and the decision is then revisited, with a new round of appraisals, business case documents, public and private discussions and budget changes. In the judicial review process too, we have difficulty keeping up with factual developments, …
69. … the nature of the discussions … are (not) of much assistance to the court, save that they serve to underline how difficult it is to make a decision about hospital provision, secure funding for it and implement it

In this context one can see a Judge anxious not to place further impediments in the way of Managers keen to make progress. Indeed, there is a hint that the Judge assumed that there might be a further opportunity for the complainants to have their say. Maybe he expected that there would, after all, be a consultation on the actual decision itself.

No matter. As readers of the Briefing Paper will see, the true implication of this case is the uncertainty it sows in the process and the fear it will arouse in communities that their opportunities to express an informed view on proposed reconfigurations will be reduced.

As and when COVID-19 allows strategic planning and service changes to resume, some Managers may feel tempted to follow in Hertfordshire’s footsteps, and experienced leaders will, hopefully dissuade them. The Institute will continue to watch this space and maintain the case for meaningful consultation throughout the process.

One final postscript.

As this case went to the High Court, and as the Prime Minister has promised Watford that it will be one of the six new hospitals (per HIP1), more money was suddenly made available. Might there be some new options upon which to consult after all?

Alas, no. The CCG still considers it insufficient to fund the hospital.

Does anyone hear vague echoes of an ancient Yes Minister episode?