Availability of social care workforce

It was argued that the CCG failed to consider whether there would be a sufficient social care workforce to deliver its new integrated model of community services. However, the Judge was satisfied that the CCG appreciated the need for a sufficient social care workforce, and that it had a broad discretion as to how it took this need into account in its decision-making. The CCG was working closely with Dorset County Council to address gaps in workforce supply, and this work would continue as the planned service changes were implemented. The Judge was reassured by the fact that none of the relevant local authorities involved in the CCG’s consultation had chosen to refer the service changes to the Secretary of State, which he would have expected them to do if they were concerned about the impact on the social care workforce.    

NHS England’s bed closure test

Simon Stevens, the NHS England Chief Executive, announced on 3rd March 2017 that with effect from 1 April 2017, a fifth test would be applied by NHS England alongside the existing 4 tests for major service changes. This test provided that significant hospital bed closures would need to meet one of the following requirements before NHS England would approve them to go ahead:

  1. Demonstrate that sufficient alternative provision, such as increased GP or community services, is being put in place alongside or ahead of bed closures, and that the new workforce will be there to deliver it; and/or
  2. Show that specific new treatments or therapies, such as new anti-coagulation drugs used to treat strokes, will reduce specific categories of admissions; or
  3. Where a hospital has been using beds less efficiently than the national average, that it has a credible plan to improve performance without affecting patient care (for example in line with Getting It Right First Time programme).

It was argued in this case that the CCG wrongly concluded that the Bed Closure Test did not apply to its proposals because its consultation had closed before the test was announced; that as a result the CCG failed to consult on the Bed Closure Test; and that in any event the Bed Closure Test was not complied with.

The Judge found that the test did apply because the entire NHS England assurance process in respect of the proposed service changes had not been completed before 1st April 2017. However, he did not consider that there was any need for the CCG to consult on the test since it was for NHS England (and not the public) to be satisfied that the test had been met. Finally, he concluded that in reaching its decisions the CCG had taken into account the requirements of the bed test to the satisfaction of NHS England.

Travel time

Arguments over the impact of increased travel times on patient safety arise in nearly every judicial review of major service changes, and this case was no exception. The CCG had recognised that increased travel times were a major concern for local people, and had commissioned additional post-consultation work including a report from the ambulance service, to address these concerns. The Judge held that the CCG was entitled to rely on that additional work. It had a broad discretion as to how to evaluate the risk caused by increased travel time, and did not need to carry out exhaustive inquiries bearing in mind the need to take urgent action to ensure safe and sustainable services. The Judge had particular regard to evidence from the Chief Executive of Bournemouth Hospital that centralisation of services for patients with heart attacks and strokes would be likely to save lives notwithstanding increased travel times.

Misleading consultation

The final ground of challenge was that the CCG had failed to provide sufficient information on the availability of 24/7 consultant cover in the ED, and also on the scale of the bed closures at Bournemouth Hospital in its consultation document. The Judge rejected these claims, noting that the consultation process had been subject to independent scrutiny by the Consultation Institute, and that the local authority health overview and scrutiny committee had not referred the CCG’s decisions to the Secretary of State. 

How Capsticks can help

Capsticks has been at the forefront of supporting the NHS with service reconfiguration for many years. Our experience includes advising on national programmes such as the reconfiguration of children’s heart services; regional initiatives such as the establishment of hyper acute stroke centres across London, and multiple local reconfiguration programmes throughout the country. To find out more about our service, or for an initial free discussion about your service change programme, please contact Peter Edwards.