It is crucial to design sustainability and transformation plans well if their good work is not to be derailed by legal challenges, writes David Hill
As the NHS’s sustainability and transformation plans reach the public domain – sometimes in a manner which NHS England planned, but also it seems in a way which they did not – attention will begin to turn to how robust the planning process which led to their formation has been.
The stakes are high. Much faith is now vested in the STP process, and hopes for its success – from the NHS’s leaders to its most seasoned observers – are high.
There is of course much cause for hope. To the NHS’s leaders, STPs provide the vehicle for planning lost to the system when strategic health authorities were abolished. To health policy thinkers, STPs have the potential to be the catalyst for the integration of health and social care services that has long been an ambition. To champions of efficiency, STPs are the means through which the complicated organisational landscape of the NHS can be navigated.
Elephant traps abound. STPs which propose changes that constitute a “significant transaction” for a foundation trust will require the approval of more than half of its governors before proceeding
But there are also reasons to be less hopeful – chief among which is the fact that STPs have been designed by non-statutory forums, overshadowed by uncertainty in how their decisions can be lawfully implemented by their component bodies.
This uncertainty is very real. When NHS England, in its guidance on STPs, listed the various legal requirements on NHS bodies to involve local people in their decisions, this was the simple part. STPs will have found that ensuring these requirements are reflected in their own processes was much harder – as Hill Dickinson, in working both with NHS England and with a number of STP areas on their plans, knows well.
Power of veto
There are myriad legal and governance issues with which STPs have had to contend, and it is not easy to draw general rules that apply uniformly across the country, let alone list all the legal requirements which apply to STPs’ component bodies here. Examples of elephant traps abound. STPs which propose changes that constitute a “significant transaction” for a foundation trust will require the approval of more than half of its governors before proceeding.
Where proposals to transfer services from one hospital to another are made, staff must be engaged and consulted with. Member practices of clinical commissioning groups may have the ability to veto strategic decisions where the constitutions of CCGs reserve these matters to them.
It would be a sad irony if the STP process ushered in a period of intense dispute between local authorities on the one hand and the NHS on the other
And where STP areas fail to engage them properly, local authorities have powers to call decisions in – relying, even well before the nuclear option of referring a reconfiguration proposal to the health secretary, on their extensive information-gathering and investigation powers.
It would be a sad irony if the STP process, which aims to facilitate partnership working between the social care and health services, instead ushered in a period of intense dispute between local authorities on the one hand and the NHS on the other. We have already seen in Camden what happens when the relationship breaks down.
To many seasoned observers – and many of those in positions of leadership in the NHS – the solution to the risk of legal challenge is a simple one: rewrite the overarching legislation to ensure it reflects the realities of today’s NHS.
But this solution is easier to write than it is to implement. Even with a thumping parliamentary majority, flagship health legislation can often be derailed – as we saw with Labour’s foundation hospital legislation in 2002 and 2003 – and the current Government’s majority is tiny.
There is an awful lot of authentically Conservative philosophy running through existing health legislation too – not least, on competition – and there is no guarantee that Conservative MPs will vote to turn their backs on it in sufficient numbers. An unholy alliance of Conservative rebels and Labour and SNP MPs could easily combine to wreck any new attempts at health legislation.
Which brings us on, absent any new legislation, to a much greater risk. Although since 2012 health policy has marched far away from the legislation intended to guide it, STPs are easily the feature of the new health landscape most likely to be challenged in court – proposing, as some are set to, the kinds of service closures that have historically provoked concern at the local level.
There is therefore a significant risk that STPs, which few would deny meet a need for strategic direction within the NHS, will be distracted or even frustrated in their task by the legal challenges that arise from the proposals.
The operational consequences of this would be grave. At a time when the NHS can sorely afford to see its decision-taking processes delayed and interrupted, legal challenges would run the risk not just of resetting the specific processes under review – but also of starting a domino effect which would set back by months other processes in other areas of the country as NHS organisations seek to align their own work with the rulings.
The resultant disruption would not only adversely affect the NHS in the short term, but jeopardise the ability of the NHS to generate the even-moderate efficiency savings which are surely a prerequisite for receiving significant new sums of money from the Treasury. Ultimately, the quality of patient care would be at stake.
The importance of getting the STPs right could not be greater.
David Hill is legal director at Hill Dickinson