Unison has applied to the high court for a judicial review, claiming the Department of Health has begun implementing white paper proposals without proper consultation.
As revealed by HSJ at the start of this month, the union wrote to NHS chief executive Sir David Nicholson about its concerns earlier in the summer, threatening to seek a judicial review if reform implementation was not halted.
Unison said Sir David had told the union he would remind chief executives not to implement the proposals until the consultation period had ended in October. But he also said the consultation was limited to how the proposal should be implemented, not on whether they should be.
Unison head of health Karen Jennings said the NHS Constitution enshrined the principle that the consultation must also include whether the proposals “should go ahead in the first place”.
She said: “I find it incredible that the NHS chief executive would say he believes there is no legal duty on the Secretary of State to consult on the merits of the proposals in the white paper. The white paper contains sweeping changes to the NHS and how it should be run.
Ms Jennings said: “The Department for Health’s refusal to recognise this clear and important legal duty leaves us no option but to issue legal proceedings as a matter of urgency.”
A DH spokesman said the NHS had been encouraged to begin “locally led consultations and take first steps on the implementation of the white paper, without pre-empting the wider consultation”.
“The government is engaging fully with the public, healthcare professionals, local authorities and unions on how its proposals will be implemented,” he said.