Legal challenges threaten service redesign

As HSJ also reports this week, a wave of reconfigurations is emerging across the country as commissioners follow London’s example by concentrating services into a smaller number of specialist units. Proposals in the North and South are proving controversial and, after the Brompton’s victory, it would be no surprise to find the chief executives of providers and commissioners ensuring they have their lawyers on speed dial.

The NHS is likely to see a significant increase in judicial reviews. The first, obvious, reason is that there is a pressing need to reconfigure how and where it delivers its services. The second is that new legislation strengthens the need to consult with a wider a range of groups before reaching any decision. The final reason is that this increased activity within the context of a stricter regulatory framework will take place in a service which is being drained of the necessary resource, in which roles and responsibilities are in flux and where legal risk assessment is both complex and sometimes unaffordable.

The dangers are significant. Earlier this year HSJ carried a warning from a respected lawyer that legal challenges to clinical commissioning groups over reconfiguration decisions could “wipe them out”.

Who would criticise any primary care trust cluster or emergent CCG for tip-toeing through a reconfiguration process with a set of less than radical proposals to minimise the likelihood of challenge? The resulting shuffling of the deckchairs might result in even more harm than that caused by objections to decisions rushed through because of a financial and/or clinical imperative.

Of course, angry, independent - and wealthy - foundation trusts will not be the only ones launching judicial reviews as a result of servicechange. In local government more than 20 judicial reviews resulted from service users challenging attempts to change the eligibility to access services. The parallels with an NHS seeking to rethink the most effective way to supply services are easy to see. Finally, there is the potential for legal challenge to new employment models - as we saw recently with the transfer of Gloucestershire’s community services.

Without action there remains a significant chance NHS reconfigurations could become queued up outside the High Court like London buses. Increasing theamount of advice, resource and risk monitoring available to all NHS bodies involved would be yet another demand on scare funds. But the sums involved would be dwarfed by judicial review legal costs and, especially, by the impact of delayed or fudged decisions.

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