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NHS learns to defend legal challenges to service transformations

Are there signs that the NHS is learning how to defend challenges to the lawfulness of its service change consultations? Recent days have suggested that this may indeed be the case.

Last week, campaigners seeking to overturn the decision to centralise some hospital services at Bournemouth failed at the Court of Appeal. Then this week was published the judgment in the long-running South Tyneside/Sunderland case.

R (ex parte Nettleship) v Sunderland & South Tyneside CCGs may well be the most comprehensive examination of a hospital reconfiguration consultation yet, with a very detailed look at the processes undertaken on a contentious proposal to move stroke, obstetric-led births and overnight emergency paediatric care to the Sunderland Royal Hospital. Like many other parallel centralisations, local people close to the site that loses services worry about transport and access, and struggle to acknowledge the scale and nature of improved clinical outcomes.

These are legitimate issues. In Dorset, the Appeal judges were told about the concern of the minority of patients whose journey time to hospital would henceforth be considerably extended. But the point is that the NHS only needs to prove that in process terms, it had properly considered the issue; there is no law that requires them to provide a service within a certain distance of where people live. No doubt campaigners in Dorset, South Tyneside and many other places wish there was – but there is not. Neither are published target response times for the ambulance service enforceable in the normal sense of the word.

For years, those who oppose significant change have sought to use process failures as a means to undermine confidence in public bodies who have often been their own worst enemies by being poorly prepared or failed to involve patients and public in a responsible and professional way. It is for this reason that it is good to see a case as in South Tyneside where the Court has confirmed that the spirit and letter of the Law of Consultation has been observed.

There are several features of the South Tyneside case that should prove instructive to other NHS bodies attempting to manage significant change:

  1. The NHS secured very early public involvement by publishing an Issues Paper at the start – a clear invitation for interested parties to express opinions whilst plans are still at a formative stage.
  2. The communications and engagement function was involved from the outset. The Executive Director of Operations for South Tyneside, Matt Brown has been quoted as saying:

It was surprising to hear how often communications and engagement experts are excluded from these processes until it is too late. We were keen to avoid that mistake, which meant that every document, decision had strategic congruence with the process that we followed  …

  1. The use of external challenge not only through the mandatory NHS England assurance process but by using a third-party analysis firm and the use of the Consultation Institute Quality Assurance service.
  2. Clear evidence that when public disquiet about travel and access was expressed through the consultation, that decision-makers paused to engage further and seek mitigation measures.

A further interesting aspect of the Judicial Review was that claimants argued that two external developments occurring late in the process should have obliged the NHS to reconsider. One was a change in the rules for the recruitment of immigrant doctors, and the announcement of improved funding as part of the NHS England long-term Plan. In the first case, counsel argued that as one of the main drivers for change was the shortage of staff, the relaxed policy might have made a significant difference. In respect of the Plan, it was claimed that the easing of financial pressures might have undermined the case for change. In both cases, the Judge had little difficulty in dismissing theses grounds of challenge.

So good news for NHS Managers seeking major changes. But be alert to three important caveats:

  1. Despite the excellent staff work in South Tyneside/Sunderland and also in Dorset, this is not an exact science and much depends upon the facts on the ground. Both teams of Managers seem to have had a fundamentally sound case, well-researched and presented. But sections of the public were unconvinced. In both cases, Scrutiny Committees used their powers of referral, and in the South Tyneside case, the IRP expressed ‘disappointment’ that the process appears to have ended without a shared understanding between the NHS and the Joint Health Scrutiny Committee. Carrying local politicians with you on the journey is a real challenge. Check out The Politics of Consultation
  2. These transformations are not just about clinical outcomes and practical issues like access. They are about identity and allegiance. In the South Tyneside case, the Judge clearly saw the claimants’ complaint as being fundamentally about the substance of the decision – not its process. Similarly at the Court of Appeal, last week the Judges kept on saying to the Dorset claimants’ barrister, “Surely this is a merits case?’ In practice, there is a grey area, so any weakness of process can make the NHS vulnerable.
  3. So much now turns on demonstrating that there was adequate involvement in options development and appraisal. The Issues paper for South Tyneside/Sunderland enabled the NHS to point to public and patient involvement early enough, but the time may come when questions may be asked as to who exactly was in the room when options are assessed or scored. Care will be needed if popular solutions are excluded via ‘hurdles’ or other criteria without sufficient transparency and the visible involvement of patient or public representatives.

In summary, not even the best-organised public consultations can necessarily avoid the delays and costs of a Judicial Review. Only meticulous preparation and sound implementation can ensure a successful defence to the kind of challenges that are mounted. Best practice assurance is also clearly of help.

About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

Read more about Rhion

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