Matthew Hunter highlights the key considerations around procurement and construction, estates and service change, and consultation, drawing on lessons from the current New Hospital Programme projects

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The New Hospital Programme (NHP) was described by the Secretary of State as transforming the delivery of NHS healthcare infrastructure to ensure the country has world-class healthcare facilities for decades to come. Participating Trusts can access real advantages in progressing their business case submissions and building programmes as quickly as possible, whilst avoiding legal risk and challenge. Here, we highlight the key considerations around procurement and construction, estates and service change, and consultation, drawing on lessons from the NHP projects which we are currently dealing with.

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NHP coincides with various construction initiatives being promoted as part of wider government strategy. The 2020 Construction Playbook details the strategic vision, including more Modern Methods of Construction, the achievement of Net Zero Carbon targets and embedding digital technology in the UK, which for NHP means using Building Information Modelling (BIM) to create digital “twins” of new hospitals.

DHSC and NHSEI have established a central NHP team to turn strategy into action, by developing standardised and repeatable digital designs to be deployed across NHP projects.

What does this centralised approach mean for procurement and contractual design on each project?

Trusts will need to ensure their business cases are fully aligned with the NHP strategic objectives in order to proceed. You may not be able to proceed at the same pace as others without a full strategic alignment or sufficient engagement with NHSEI. Experienced project teams and consultants immersed in NHP projects are therefore invaluable.

The successful procurement of design teams/contractors will require more flexibility than a typical project. For early NHP projects, the ability to implement standardised designs as they become available is vital.

Once NHSEI has confirmed the preferred route to market, Trusts will need to ensure they are ready to proceed quickly. Subject to approvals, Trusts must consider contract and procurement strategies in advance so they are able to progress quickly.

The Capsticks team is advising multiple Trusts on strategic planning to ensure they are in the best position to proceed; this includes preparing contractual solutions to accommodate the new design risks that arise from standardised designs.

Whether the Trust is acquiring land for development, or disposing of surplus land, it is also essential to have a comprehensive approach to de-risking sites at an early stage. Early identification of site risks ensures that potential obstructions to development are removed and that solutions are sustainable and thought-through.

Equally important is to consider the inter-relationship of the project’s land aspects with public consultation. If Trusts intend to acquire land for development, they must avoid taking steps which suggest a preferred option has been determined prior to a full consultation process being run, such as entering into unconditional sale contracts or paying significant fees to secure options to purchase over sites.

Although the NHP is a capital building programme, and is subject to the Treasury Green Book and NHSEI’s capital business case process, NHS bodies involved in schemes must also be mindful of their duties regarding patient and public involvement and the requirement to consult with local authorities in respect of substantial service changes.

Some schemes will obviously require public consultation either because a new-build hospital at a different location is proposed or because the new hospital will lead to centralisation of some clinical services. However, campaigners have argued that there should be consultation even where the preferred option is to develop an existing site.

Taking advice on these issues at an early stage is essential for two reasons. First, there may be a need to mobilise other NHS stakeholders to undertake an effective public consultation, which should be led by commissioners and subject to assurance from NHSEI. Second, in order to avoid risks and potential delays caused by judicial review, schemes need to adopt effective mitigations whilst developing their proposals, undertaking option appraisals and preparing/approving business cases.

The NHP is a unique opportunity for Trusts to transform their hospital buildings for the benefit of local populations, but that opportunity may be lost if there are significant delays in procurement; contracting or land acquisition or as a result of a judicial review. Early strategic advice informed by the experience of other NHP schemes will enable Trusts to deliver their projects on time whilst mitigating the risks of a legal challenge.