Confusion often arises over NHS bodies' consultation obligations, but upcoming legislation makes it ever more important to get these right, says Trevor Blythe

With service reconfiguration and the need to make financial savings both still high priorities for the NHS, it remains essential for NHS bodies to understand and meet their obligations regarding public consultation. Failure to consult will lead to a loss of public confidence, divert vital management time when a challenge is made and, in many cases, cause delay and additional expense.

NHS consultation obligations have had a long and unsatisfactory history. Confusion often arises over the timing and nature of the consultation required, particularly the timescale and the make-up of the consultee group.

The Health and Social Care Act 2001 attempted to address some of these issues, but in some respects probably made the position worse. The key provisions of the act have now been repealed – but re-enacted through the National Health Service Act 2006.

Undersection 11 of the 2001 act, (now section 242 of the 2006 act), strategic health authorities, primary care trusts, hospital trusts and foundation trusts were for the first time placed under a duty to ensure patients and prospective patients, either directly or through representatives, were 'consulted on and involved in' certain service-planning activities. This included the planning of services and the way they were provided, the development and consideration of proposed changes, and decisions of the NHS body concerned affecting the operation of those services.

Until then, consultation was only required when big changes were being contemplated, and section 11 was therefore a major innovation. Each NHS body now had to have a system in place that wove the section 11 duties of involvement and consultation into its everyday business development process.

Stumbling blocks

One immediate difficulty in this was judging the appropriate level of patient involvement, which needed to be flexible to reflect the nature and impact of what was under consideration.

Another challenge was in deciding the appropriate period for consultation. If patients and their representatives were well integrated into the service planning process, their continuous ‘involvement and consultation’ in that way was often sufficient and in many cases the consultation requirements could be satisfied merely by consulting the patients forum. However, more substantial changes would usually involve a formal referral to the local overview and scrutiny committee and might also require full, formal public consultation as well.

In terms of the duty to consult the committee,knowing when a substantial development of the health service or a substantial variation in the provision of the services is proposed can be difficult.

For example, in some circumstances – such as the closure of a hospital or a major reconfiguration of a critical service – the answer is self-evident. However, problems arise where a proposal is thought to be on the margins. In such cases, a judgement call is more difficult.

In the spirit of co-operation, an NHS body might choose to discuss matters with its local committee in accordance with their agreed protocol, but one should distinguish between those occasions where there is a statutory duty to do so and those where there is none and the NHS body is merely 'advising' the committee of a possible change. Blurring this distinction can lead to the NHS body assuming greater consultation obligations than exist at law.

Immediate action

Provisions in the overview and scrutiny committee regulations allow immediate action to be taken without prior consultation where an emergency arises that could put patient or staff safety at risk. Foundation trusts are not under the same obligations as other NHS bodies. They only need to consult the committee where the trust proposes to apply to Monitor to vary its authorisation and, if successful, the application would result in a substantial variation in the provision by the foundation trust of protected goods or services in its area.

With the Local Government and Public Involvement in Health Bill expected to become law in the next couple of months, new and significant changes to the consultation regime will be introduced. Patients' forums will be abolished, to be replaced by Local Involvement Networks, with whom NHS trusts, foundation trusts and PCTs will all have to engage. PCTs will have to consult before making commissioning decisions. In addition, the section 242 duty is being redefined and clarified. NHS bodies will therefore need to keep abreast of developments in this area as the regime changes once again.

Does any of this matter? Well, yes. Leaving aside the positive benefits of consultation, not all changes are universally welcomed. If the proper consultation has not been conducted, the decision to proceed can be challenged and, in a flagrant case of non-compliance, such a challenge would, in legal terms, be virtually indefensible.