If the commissioners get it wrong, the reset may fail

Much of the focus of last month’s “reset” has been on the requirements imposed on providers. Indeed, at least five of the seven “wide-ranging actions” unveiled in the document are in the gift of provider organisations – and a further action is linked to implementing sustainability and transformation plans (STPs), which providers are party to.

Only one of the reset’s actions – the new performance ratings for clinical commissioning groups (CCGs) – is focused on commissioners.

Blurring lines

The outward focus on providers is understandable, given that it is in these organisations where most of the short term savings will need to be made to ensure the Department of Health avoids breaching its spending limit this year. However, much of the burden of implementing the longer term aims of the “reset” – and thus ensuring the financial sustainability of the NHS – will fall on commissioners.

This might strike some as surprising. With the announcement of success regimes and new care models last year, and the announcement of STPs this year, it is fashionable – and, in practice, true – to say that the traditional lines between providers and commissioners are becoming blurred.

Commissioners will need to respond to these requirements in two ways: first, decommissioning services; and second, driving reconfigurations

Nonetheless, the legal reality is not so blurry – and much of the formal responsibility for implementing the most drastic steps contained in the “reset” (delivering 3 per cent efficiencies in commissioning budgets, “re-providing services that are not clinically and financially sustainable”, and securing “win-win changes to service models”) remains with commissioners.

Commissioners will need to respond to these requirements in two ways: first, decommissioning services; and second, driving reconfigurations. Both can be fraught with danger if not handled with great care.

Commissioners have been looking to decommission services since long before the reset – and with mixed success. Back in 2014, NEW Devon CCG moved to withhold surgery for smokers and the morbidly obese. Many other CCGs have attempted to close walk-in centres.

Homeopathy services have been scaled back. Sometimes these moves have been successful, but in many cases they have failed or at least taken a lot longer to achieve than originally planned.

If commissioners fail in the future, the efficiencies they need to generate will never be achieved.

Attempts to reconfigure services have stumbled, too. Although of course there have been many examples of successful service reconfigurations in the NHS’s history, all too often attempts by commissioners have been abandoned in the face of public and professional opposition – with promised efficiencies never realised and loss of face for those involved.

Obvious traps

In both cases, commissioners have often fallen foul of some obvious traps.

The first trap is one of timing. If services are to be decommissioned or reconfigured, commissioners are legally obliged to give patients and members of the public enough time to consider the proposals and offer their views.

A court can be expected to scrutinise a consultation period of less than three months where a significant service change is proposed. Anything less than six weeks and the process will be in great jeopardy – as will any consultation run by commissioners through holiday periods without any compensating increase in their timescales.

Legal traps are not the only ones that exist

Given the breakneck speed at which the “reset” process is being run, this is a trap into which many commissioners might now fall.

The second trap is one of participation. Commissioners must ensure they are engaging with those who will be affected by a decommissioning or service reconfiguration decision, and at a point in the process when the decision is still being formed.

The tokenistic involvement of patients and members of the public after a decision has been made – or the announcement of a final decision as a “fait accompli” – may well trigger a legal challenge. There is every risk that the publication of STPs later this year – some of which might contain near-complete reconfiguration proposals – will fall into this trap.

The third trap is taking a decision with a discriminatory effect. Decommissioning a service without sufficient regard to the impact of that decision on older people, disabled people, pregnant women, or ethnic or religious groups (among others) may well fall foul of commissioners’ obligations under the Equality Act.

And, although people living in rural communities are not specifically protected under the Equality Act, proposals that mean people living in rural communities must travel increasing distances to access services are always contentious.

Legal traps are not the only ones that exist – and they can often be avoided if advice is sought at any early stage of a process rather than (as can happen) at its end. Even then, however, commissioners need to be cognisant of managing the political risks – the fourth trap – of decommissioning and reconfiguration decisions.

Whether formally (through a referral to the health secretary by a local authority’s overview and scrutiny committee), or informally (through a national body asking difficult questions of a commissioner), a failure to prepare the ground politically for a decommissioning or reconfiguration decision can slow or even stop it in its tracks.

It was this trap – rather than any formal legal decision (although that might ultimately have been made) – which saw Simon Stevens put paid to NEW Devon’s decommissioning efforts at the end of 2014.

All of these traps have real-world consequences, because – if a commissioner gets stuck in them – they will have to meet the resultant costs themselves. At best, a delayed but ultimately successful decommissioning or reconfiguration decision will mean that a commissioner must continue to fund the service whilst the process gets reopened.

But at worst a decision which gets reversed will mean that the commissioner must not only continue to meet the costs of running the service, but also the legal costs associated with the challenge.

It remains to be seen, over the coming months, whether the swift and drastic actions which providers can take to “reset” the NHS finances in the short term will be followed by the necessary actions required of the NHS to ensure sustainability in the long term.

However, two things are certain at present. First, and regardless of the non-legislative arrangements being put in place, the responsibility for implementing these long term actions resides largely with commissioners. And second, if commissioners get the decision-taking process wrong, the necessary actions will never be taken, and the “reset” will fail.

David Hill is legal director at Hill Dickinson