Legal briefing: commissioning change after North Eastern Derbyshire PCT

The decision in R (Smith) v North Eastern Derbyshire primary care trust in August has raised concern over the extent of the obligations of primary care trusts to consult, in particular on situations where there could be a change of contractor.

In the case of NE Derbyshire PCT the court held that it was in breach of its obligation to involve and consult patients or their representatives under Section 11 of the Health and Social Care Act 2001, where it was proposing to replace a failed personal medical services contract with a new alternative provider medical services contract.

The court considered the issue at first instance ? there was no appeal against the judge's finding that there has been a failure to comply with Section 11 on the facts of the case. The judge did not define the scope of Section 11, although he did consider it and commented on the width of the drafting. The section requires that PCTs have a system for ensuring that patients or their representatives are involved in or consulted on:

• The planning of the provision of services which may affect them;
• The development and consideration of proposals for changes in the way those services are provided;
• Decisions to be made by te body affecting the operation of those services.

The judge accepted that not every change in arrangements for primary care were necessarily caught by the section. He indicated that a change in a GP partnership would not trigger the obligation of itself but left open whether in principle the obligation is triggered by a change of contractor.

Clearly it is where there are potential changes in the services to patients that the obligation rises, and in NE Derbyshire the judge took the view that the history of a failed service and the need to improve it was one such example. The judge was attracted by the argument that the key test will be whether there is any change in the services which may affect the patients. Similar tests will apply for other types of service, including proposals for change from acute to community settings.

However, even if this obligation applies, the PCT is not required in all cases to go to a full public consultation. The requirement is to have a system in place in which the views of the public, either directly or through representatives, can be fed into the process. This needs to be proportionate to the scale of the changes. This may involve discussions about the specification ? where this is not laid down by the Department of Health ? and input into the selection criteria.

However, it would not be lawful for the PCT to take a line on what type of contractor it wanted in the light of consultation if the proposed criteria are themselves unlawful because they are discriminatory.

As PCTs are having to become aware, commissioning health services has to meet basic standards of transparency and fairness under European Union law.

David Owens is a partner at law firm Bevan Brittan