Some NHS healthcare providers have already announced emergency service changes as a result of the COVID-19 pandemic. Typically these changes are a response to an increase in the numbers of patients being treated for COVID-19, and a decrease in staff numbers due to sickness or self-isolation. The changes may aim to provide a single point of access to emergency care for COVID-19 patients; the safe separation of COVID-19 patients and those who do not have the virus; or to create a larger pool of clinicians available to work in the emergency department or critical care unit.

Given the urgency of the current situation, there may not be time for you to carry out the usual level of engagement with local stakeholders before implementing these changes, so what are the rules that apply to emergency service changes?

Consultation with local authorities

Under the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, the NHS is required to consult with local authorities when proposing a “substantial development” or “substantial variation” in local health services. However, emergency service changes can be made without consultation with local authorities where an NHS organisation is satisfied that it needs to make the changes without allowing time for consultation because of a risk to the safety or welfare of patients or staff. It’s likely that changes related to the COVID-19 pandemic will meet this requirement. If they do, the NHS organisation concerned must notify the relevant local authority(s) immediately of the decision taken and the reason why no consultation has taken place.

Public involvement

All NHS bodies are subject to duties to involve the public in the planning of services; the development of proposals for changes in those services and decisions to change services. Involvement can be by way of consultation; the provision of information or in other ways. Guidance from NHS England indicates that in an urgent situation, it may be necessary to consider the duty to involve the public alongside the public interest in maintaining continuity of care and protecting the health, safety or welfare of patients or staff. It may therefore be necessary to limit public involvement in emergency service changes related to the pandemic to the provision of information about those changes, although if it is possible to undertake a more extensive public involvement exercise that would be desirable.

What happens when the pandemic ends?

It is likely that many services will revert to their pre-pandemic configuration. However, if the local NHS decides that the emergency changes should be implemented on a permanent basis, this should be approached as a new decision which will be subject to the public involvement duty and, depending on the scale of the changes, the duty to consult with local authorities.

How Capsticks can help

If you have any queries around what's discussed in this article, and the impact on your organisation, please speak to Peter Edwards, Andrew Latham or Charlotte Radcliffe to find out more about how Capsticks can help.