Capsticks partner Peter Edwards has contributed to an introductory guide to legal obligations for NHS service change programmes which has recently been published by NHS England.

In conjunction with public consultation experts Paul Parsons and Caroline Latta, Peter has prepared an introductory guide that describes the legal framework that applies to NHS service changes and the steps that NHS bodies need to take in order to comply with these duties.

It can be costly and time-consuming, and undermine public confidence, when NHS bodies do not act in accordance with their legal obligations when planning and implementing service changes. Sometimes legal challenges can stop proposed service changes being implemented altogether. This guide was written in response to requests from NHS colleagues involved in service change programmes for more support to help them understand these requirements better.

This guide describes the current legal framework and the likely steps required to discharge legal duties in the context of service changes. It will help those involved in NHS service changes to navigate the common legal and policy issues from the very start of a service change programme through to decision-making. This includes NHS commissioners and providers, as well as Integrated Care System (ICS) and Sustainability and Transformation Partnership (STP) leads

The legal requirements are designed to make sure NHS bodies take all relevant factors into account in decisions to commission and provide the best services possible, and that the processes by which they involve the public and consult with relevant stakeholders are fair. If stakeholders are dissatisfied with a service change decision made by an NHS body, there are two formal ways in which that decision can be tested publicly:

1. The matter may be referred to the Secretary of State for review by local authorities in the affected area using powers given under health scrutiny legislation.
2. Anyone with an interest may bring a claim for Judicial Review. In such cases a judge will review the facts of the case by examining programme documents and considering written witness statements. The court can quash decisions if a judge finds they have not been made in accordance with the law.

Peter’s involvement in writing the guide comes as a result of his work on service change programmes nationally including the acute services review in Dorset; the reconfiguration of acute stroke services in Kent and Medway; and the reconfiguration of hospital services in South Tyneside and Sunderland. Each of these programmes was subject to legal scrutiny through the judicial review process, and in each case the NHS decision-making was upheld by the Courts. However, much of Peter’s work takes place during the preparatory stages of service change programmes where he provides legal support in respect of the evaluation of options; the preparation of Pre-Consultation and Decision-Making Business Cases and NHS involvement with health scrutiny committees.

If you would like to discuss your local service change plans with Peter please get in touch.