Last Thursday, IRP – the independent body that advises the Secretary of State on contested health service changes in England – published its latest advice letter.

As always IRP’s assessment letter is full of useful learning. The assessment is unusual in that the advice effectively unmakes a commissioning decision made by a CCG. The assessment is set to have important implications for any system at any stage of developing and considering proposals for change, particularly integrated care systems, the rebranded sustainability and transformation partnerships that are considering large scale, system wide changes.

The subject of the assessment is Oxfordshire CCG’s proposals to cease commissioning an obstetric unit at Banbury’s Horton General Hospital and establish a midwife-birthing unit there instead.

Oxfordshire health scrutiny referred the matter to the secretary of state in 2017.

Proposals for permanent changes to maternity services at the Horton have been under consideration for some time. The CCG planned two phases of public consultations on a complicated raft of system wide changes. Phase 1 included maternity. Paediatrics was to be in phase 2. The phase 1 consultation included a preferred option proposal that would see the obstetric unit at the Horton close and a midwife-led birthing centre established. Shortly before the consultation was launched, the trust closed the obstetric unit temporarily citing patient safety concerns caused by staff shortages. In its place, the trust set up a stand-alone midwife led unit. Local health scrutiny committee referred the temporary closure decision to the Secretary of State for review shortly after the phase 1 consultation on permanent change proposals launched.

In August 2017, the effect of CCG’s post-consultation decision was to cease commissioning an obstetric unit at the Horton. Local health scrutiny committee referred the permanent closure decision and campaigners challenged the consultation process in the courts.

In September 2017, IRP published its assessment of the temporary closure referral stating that events had been overtaken.

In December the courts heard the case against the consultation. The judge dismissed the challenge.

In January 2018 Secretary of State passed the referral of the permanent closure decision to IRP for assessment.

Significance of the assessment 

On first reading this assessment is significant in several ways.

1. It’s clear IRP unmakes the decision made by the CCG in August 2017. This isn’t the ‘local action will resolve this’ outcome we’ve become used to from IRP. More action is needed before a decision is made. The conditions it places on proceeding mean at the very least the alternative proposals received need to be fully considered, meaning that information would have to go back to the decision makers. IRP also points out all the interdependencies with the services (children’s, A&E, etc) the CCG plans to consult on in its planned phase 2 consultation. This will be challenging to navigate without including maternity in phase 2. The likely effect is that maternity services at the Horton will be uncertain for at least 12 more months.
2. There are three local authorities that should have been notified and consulted by the CCG. IRP doesn’t find against the CCG on the grounds of absence or inadequacy of consultation, probably because the referring authority was consulted. A matter it would have had to consider, had Warwickshire or Northamptonshire made a referral.
3. IRP calls on the Department of Health and NHS England to “consider whether the regulations and guidance are sufficiently understood and used effectively by all parties, particularly in the current context of STPs and “systems of care” rather than “organisations”. (See Rhion Jones’ piece: The IRP: NHS needs better understanding and effective use of engagement and consultation)
4. The assessment appears to highlight inconsistencies in the expectations of regulators and those of the courts, which could lead to complex considerations for consultors. (See Rhion Jones’ piece on the Judicial Review

General learning points

1. The geographic area that matters is where the people are who use the services and who might use the services come from, not the area covered by any administrative body.
The Horton sits in Oxfordshire. It serves people from Oxfordshire, Northamptonshire, and Warwickshire. IRP says the requirements to form a s30 joint scrutiny committee “must take account of patient flows, not be based on administrative boundaries.” The importance of detailed patient data early in the process can’t be underestimated. Service change teams following NHS England guidance will be collecting data on where patients come from to discharge health inequality and equality duties. They can use that same information to identify the affected local authorities and inform them (Regs: s23(1)) that they are considering proposals for change. And if the data shows the proposals would affect people in more than one local authority area, inform them of their requirement to form a s30 joint scrutiny committee.  This assessment gives cause to insist reluctant councils participate in joint scrutiny arrangements. IRP notes the lack of evidence that this CCG took sufficient action to instigate joint OSC in the first place.

2. The regulations and DoH scrutiny guidance are there to help.
Knowing and sticking to the rules leads to more reasonable expectations and less troublesome outcomes. It’s clear the rules are there for a reason. Mutual respect between commissioners and scrutiny bodies helping each other to discharge fully the responsibilities each has under the regulations is likely to lead to better, more acceptable outcomes. Ignoring or short-cutting the requirements laid out in the health scrutiny regulations has its attractions when there are tight timescales to keep to, but often leads to trouble later in the process. The IRP assessment speaks for itself on this matter: “the health scrutiny regulations provide the means to engage with health scrutiny effectively when properly understood and followed. Nevertheless, lack of knowledge or inexperience seems to be preventing this in some places. It is essential moving forward that all parties are aware of their responsibilities and follow the relevant regulations and associated guidance.”

3. There’s no room for fudging on either side. This builds on the previous point.
CCGs need to be clear about who they are engaging with on which basis. Are they consulting a local authority under the scrutiny regulations s23 duty to consult relevant on substantial change proposals, or involving a district council as a stakeholder representing local people under the s242/14Z 2 duty to involve patients and the public. NHS bodies need to be clear and act accordingly with integrity. Local authorities can’t take formal action on informal arrangements, so there have to be some hard truths about the extent of the scrutiny and referral powers shared at an early stage.

4. Post-consultation plans need to contain sufficient time and flexibility to fully consider alternative ideas and proposals.
IRP says the consideration of alternatives put forward by respondents to the public consultation was insufficient. NHS consultors have to appropriately consider alternative ideas and proposals that are submitted in response to the consultation. Conscientious consideration is the fourth Gunning principle, and therefore a requirement of the courts for lawful consultation. Deficiencies in this area could be picked out by campaigners as grounds for challenge in the courts.

This assessment will likely be the subject of much discussion in the coming weeks. Keep an eye on the Institute website and twitter feed @tcinews for the institute’s latest analysis and comment.

If you’d like to talk about how the detail in the assessment might affect your plans, get in touch, we’re here to help.

For more information on the role and process of IRP see Referring consultations to the Health Secretary: what actually happens?