A guide to the new NHS consultation obligations

The Commission for Patient and Public Involvement in Health and patients' forums will probably be disposed of by 1 April. They will be replaced by local involvement networks set up by local authorities and there will also be a strengthened role for local authority overview and scrutiny committees.

Alongside this, changes have been made to the provisions of section 242 of the NHS Act 2006, which deals with the specific obligations of NHS bodies to secure patient and public involvement in various health matters.

At present, section 242 requires most NHS bodies to "involve and consult" patients and/or their representatives, not only in planning services but also in considering changes to service provision and in making decisions about how services should operate.

Where such activities are concerned, NHS bodies to which the section applies must engage with patients and others on a continuous and proportionate basis depending on the nature of the matter under consideration.

This meansa relatively minor matter may be dealt with merely by talking to the patients' forum while, at the other end of the spectrum, a major proposal may involve a full three-month public consultation exercise.

Judgement call

However, under the new arrangements, although LINks will replace patients' forums, the act still leaves NHS bodies with the same judgements to make as before - as to who else needs to be consulted, when and how.

The amendments to section 242 go some way to addressing this. First, the existing obligation to "involve and consult" has become simply an obligation to "involve". In practice, this change may be largely cosmetic, and amount to little more than removing redundant wording, as the amendment makes it clear that the required involvement may be achievable through consultation.

Second, involvement is only required when proposals or decisions would have an "impact" on how services are delivered to patients or on the range of services delivered.

Despite this, it remains an obligation to involve patients and others in "planning the provision of services", as distinct from developing proposals for change or for taking decisions about how services will operate. Judgements will therefore still have to be made as to which sub-section of section 242 a particular action falls into. Hopefully, the position will become clearer once new regulations and guidance are published before the relevant sections of the act come into force, probably this April.

Change for the better?

So, a new regime to get to grips with. Will it be better, simpler or clearer than the one it replaces? At this stage, who knows? The House of Commons health select committee looked at the whole question earlier this year and had serious doubts. It felt patients' forums should have been allowed to evolve and were not convinced of the case for abolition, which seemed to it to have been driven by the earlier announcement that the Commission for Patient and Public Involvement in Health would be abolished.

The committee felt structural reform was once again being embarked on with inadequate consideration of the disruption it causes. However, despite these reservations, it felt LINks could be effective.

Similarly, it was not convinced changes to section 242 were necessary. The issue was faulty implementation. Essentially, it felt the Department of Health should encourage NHS bodies to adopt best practice; structures were not the issue.

What matters is that the health service should listen and make changes as a result of what they hear. The new amendments go some way to tackling this problem by the introduction of a new statutory duty, binding both strategic health authorities and primary care trusts, to prepare reports on the consultations they have carried out and their influence on subsequent commissioning decisions.

In future, some PCTs at least will have to focus more clearly on this issue.