House of Commons - Health

Select Committee on Health Third Report

5 Major consultation

Consultation about major local proposals

DUTY TO CONSULT USERS OF THE HEALTH SERVICE.

232. Under Section 11 of the Health and Social Care Act 2001 there is a duty to consult users of health services. Subsequently, Section 11 of the 2001 Act became Section 242 of the National Health Service Act 2006, but consultations are still commonly known as Section 11 consultations and in this report we continue to refer to them in this way.

233. Consultation may cover:

the planning of the provision of those services;

the development and consideration of proposals for changes in the way those services are provided; and

decisions to be made by the body affecting the operation of those services.

234. 'Policy and practice' guidance on Section 11 of the Health and Social Care Act 2001, entitled Strengthening accountability, was issued by the Department in February 2003. This gives guidance to NHS trusts on how they should undertake their role of involving and consulting patients and the public.

235. Under Section 7 of the Health and Social Care Act 2001 Local Government OSCs have the power to review and scrutinise matters relating to the health service in the authority's area, and to make reports and recommendations.

236. The Secretary of State has extensive powers to intervene in the NHS under the National Health Service Act 1977. In addition, cases can be referred to the Secretary of State by an OSC. The Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002 state:

In any case where an overview and scrutiny committee considers that the proposal would not be in the interests of the health service in the area of the committee's local authority, it may report to the Secretary of State in writing who may make a final decision on the proposal and require the local NHS body to take such action, or desist from taking such action, as he may direct.[225]

In coming to a decision the Secretary of State may refer the case to the Independent Reconfiguration Panel for advice.

237. In principle, an effective and comprehensive system of statutory consultation has been established, as Candy Morris of the South East Coast SHA told us:

As a minimum, Section 11 of the Health and Social Care Act 2001 places a duty on Primary Care and NHS Trusts and Strategic Health Authorities to make arrangements to involve and consult patients and the public:

not just when a major change is proposed, but in ongoing service planning;
not just in the consideration of a proposal, but from the outset in the development of that proposal; and
in decisions about general service delivery, not just major changes….
- Section 7 of the Health and Social Care Act 2001 gave powers to Local Authorities to establish Overview and Scrutiny Committees to:
take on the role of scrutiny of the NHS—not just for major changes but for the ongoing operation and planning of services;
refer contested service changes to the Secretary of State;
call NHS managers to give information about services and decisions;
report their recommendations locally;
be consulted by the NHS where there are to be major changes to health services.

Section 11 requires that the NHS engage people in all circumstances when the NHS are changing and improving services, since this is a constant process of improvement for any public service. In the NHS as in other public services there are many and varied ways for patients, staff and the wider public to improve the way the NHS and other providers offer health and social care services.[226]

Other witnesses expressed similar views:

The wording of Section 11 of the Health and Social Care Act 2001 is, perhaps, rather incoherent and repetitive, but on any reading the intention is plain. Patients or their representatives are to be 'involved' in virtually any deliberations within the NHS which might impact on what is delivered, how it is delivered and by whom. The obligation is notably framed in very wide terms—it goes beyond a simple (and more traditional) obligation formally to consult before taking decisions. The fact that consultation is required across the full range of planning and from the earliest point in the development of ideas.[227]

238. Thus in theory the system of statutory consultation is excellent; however, in practice there is much disappointment with its operation of both Section 11 and Section 7. Many submissions to the inquiry addressed such disappointments. We also questioned representatives of the NHS Alliance and NHS Confederation and the Minister and officials about the subject and held an evidence session with the two experts quoted above, Candy Morris, who is in charge of reconfiguration in the South East Coast SHA, and Richard Stein from Leigh Day and Co Solicitors who has challenged several Section 11 consultations.

PROBLEMS WITH SECTION 11 CONSULTATION

239. There are a number of criticisms relating to Section 11 consultation namely:

consultation is or is thought to be insincere or dishonest;

even when undertaken honestly, mistakes are made, often because of lack of time;

too often NHS bodies seek to avoid consultation.

240. We heard many complaints about trusts undertaking consultations after the decision had already been taken. As the Patients Forum stated:

It is still too often the case that communities are presented with a fait accompli, and the NHS simply uses inadequate consultation mechanisms to effectively rubber-stamp a decision that has effectively already been taken.[228]

241. This conclusion is perhaps inevitable when a large majority of people reject a proposed reconfiguration but their views are ignored. For example, in Hertfordshire people were presented with two options relating to . 82% of people preferred option two, but the trust is going ahead with option one anyway.[229]

242. Witnesses argued that the situation was becoming worse as trusts deal with financial deficits. Richard Stein told us "that in a climate of hospital closures, service reductions and staff redundancies, to achieve spending reductions, it became even less attractive to NHS managers to involve patients or their representatives in their decision-making". He gave an example of how consultation could be avoided:

In many cases, where Trusts are short of money, they will run down the staffing levels so that the only safe step they can take is to close a ward or a service. Such steps are frequently taken without patients being involved in the decisions. Once such services have been closed, albeit on a supposedly temporary basis, they very rarely re-open and the decline takes place without any patient involvement as to the appropriateness of the change. This is seen by many NHS Trusts as a useful device for avoiding their responsibilities to involve patients and public.[230]

243. Even where consultation is undertaken sincerely, mistakes are made, as the consultation (albeit not a formal consultation) described in Box 1 shows.

BOX 1
244. Before amalgamation with Kent & Medway SHA to form the South East Coast body, Surrey & Sussex SHA carried out a public consultation on healthcare services in the area.[231] This was not a formal consultation under Section 11 of the Health and Social Care Act, however. The document, Creating an NHS fit for the future, was instead referred to as a 'discussion document'. It examined why changes to healthcare were needed and made proposals for improvements to services in Surrey and Sussex. The document was aimed at patients, carers and NHS staff as well as the general public. In addition to circulating the document, meetings were held to discuss the issues.
245. 6,226 people responded to the discussion document and 2,575 wrote with a more detailed response to the issues raised. Most of the responses were sent by members of the public (87%). The majority (81%) were about concerns at the possible closure of St Richards Hospital in Chichester. A company called TwoCan Associates was commissioned by the SHA to analyse the responses in more detail. They found:
Overall, people agreed with the reasons for change outlined in the document, and the desire to improve health services. However, they were concerned that the changes would not lead to any improvements in the quality of health care, and felt that the real reason for the proposed changes was to save money. Many did not seem to trust that the SHA was telling them the truth.[232]
246. Concerns relating to the closure of the hospital included longer journey times to hospital for patients and visitors and delayed treatment. There were also fears about reduced capacity with the growing population of the South East. The researchers commented:
Overall, the discussion document seemed to frighten many people—perhaps needlessly.[233]
247. A common point raised was that too many consultations were being held within a short space of time and several respondents stated that "in spite of these consultations no one felt any better informed". In addition:
These discussions were thought to have had a very negative impact on staff morale and caused distress to the public. Overall the community felt let down and shared a great deal of cynicism regarding the whole process.[234]
248. Furthermore, respondents said the document was too vague to give constructive feedback, did not help move the debate on and was a waste of money. Comments included:
Consultation is urgent but it is maddening to see all this money being spent on 'glossy magazines' when we have no budget for training, nor sufficient stationery to do our jobs. [member of NHS staff]
The glossy brochure and lack of space to return comments creates the impression this is a publicity stunt and not a genuine consultation. [Member of the public]
249. Many were sceptical that their views would be listened to and a common response, which echoes comments made in previous evidence sessions, was that people thought the major decisions had already been made so the exercise was pointless.[235]
250. Questioned about this case, Candy Morris argued that in a proper consultation, people must be involved from the beginning when nothing was ruled out. Inevitably therefore staff would be scared and the consultation would appear vague; this is a sign of things being done correctly:
one of the effects of Section 11, however well it is undertaken, is that engaging rightly patients and staff, communities, local government, voluntary groups and so on right from the beginning of a process which lays out the reasons why change might need to happen, what the benefits are, what the risks are and trying to work together on solutions over a long period of time means that everything is out on the table and nothing is off the table for a long period of time, so it is not possible right at the beginning to say, "But of course this place will be all right", or, "Of course that place will be all right", because, otherwise, you are not actually undertaking Section 11 properly.[236]

251. We also heard from several witnesses that too many NHS organisations are trying to narrow the range of situations in which they have to consult under Section 11. Witnesses argued that the Department of Health had certainly not acted in the spirit of Section 11 and its accompanying guidance. Rather it had done its utmost to support the NHS organisations which rejected demands to consult. Richard Stein told us:

I know you are aware of the example in Derbyshire last year around the GP practice in Langwith and Creswell where it was clear that the need to involve the community was one which the community themselves had been crying out for which was not done. That would seem exactly the kind of case where one would hope that the Strategic Health Authority or the Department of Health would have said, "Hey, this is a good example where better practice would have been so and so". Rather than that, they were in court doing everything that they could do to try and bolster what had happened locally, so, from my perspective, they are all in it together and there is not really a pressure to introduce, to support or encourage that culture of involving patients through the whole process.[237]

The Department is also taking the lead in arguing that Section 11 does not apply to ISTCs. Mr Stein added:

I understand your Committee has looked at ISTCs and one of your concerns is the lack of consultation on them and then the comment from the Minister in response that there would be consultation. … but [in Bristol] the clear direction came from the Minister that one does not consult before the conclusion of the contract on ISTCs. I think that is wrong in law, but the reason why it is important that it is also wrong in policy terms is that clearly, even though the ISTCs might be commissioned at a national level by the Department of Health, the way that they impact on the provision of healthcare is obviously local.[238]

He continued:

I think that the trouble with Section 11 itself is that, when you get the Department of Health lawyers in court picking through it and trying to make it say that it does not cover things like the GP contracting process in Derbyshire or currently that it does not cover the need to consult about introducing an ISTC as part of a development in the Bristol area, then you could say that it is not clear, but the intentions are very clear from the guidance.[239]

In the North Derbyshire case the courts found that the PCT did have a duty to consult, which it had breached.

GOVERNMENT'S PROPOSALS FOR CHANGE

252. The Department stated in its evidence to the Committee:

We will simplify, clarify and strengthen the current legislation on health service consultation.[240]

To this end the Government proposes to amend Section 11. Section 11 currently states that there must be consultation on all proposals and decisions. This will be amended to "significant proposals" and "significant decisions"; "significant" is defined as "having a substantial impact on the manner in which services are delivered to users or the range of services available to those users".[241]

253. Several witnesses expressed concern about this change; CPPIH stated:

We are concerned that the proposed amendments in clause 163 of the Local Government and Public Involvement Bill narrow the range of issues on which consultation is required to proposals which would have a substantial impact on the manner in which the services are delivered to users of those services, or the range of health services available to those users only The Committee will recall there was no requirement to consult under Section 11 over the recent PCT reconfigurations as these were classed as managerial and administrative decisions by the Department of Health and considered to have no connection to service delivery. The consequence of this was that objections that such changes could adversely impact on service delivery were overridden. CPPIH recommends that there should be a requirement to consult on major structural change such as large scale reconfigurations of organisations charged with securing the delivery of public services.[242]

254. A number of witnesses approved of the change. We questioned Nigel Edwards of the NHS Confederation about this issue:

Dr Taylor: So, going back to the word "significant", should we be trying to change it, delete it, or what word should we put in instead?

Mr Edwards: I think "significant" will do and maybe it is the guidance that is the issue here and it might be helpful to have some worked case studies…From our point of view "significant" must relate to a change in patient experience or convenience, so saying that I produce the same amount of healthcare but I have moved from Grantham to Lincoln would count as significant if it makes a big impact on patients, but if you change the GP practice between one practice and another or between a GP practice and a private company, for example, as we have seen recently in north east Derbyshire, as long as the same experience is there that probably does not count as significant. It is a really quite slippery concept and I think we may run into trouble with it as time goes on.[243]

255. In contrast, other witnesses were strongly opposed to the use of "significant". The group Keep Our NHS Public stated:

[The Bill] would limit consultation under Section 11 to (a) the planning of the provision of services and (b) to changes that significantly affect the range or manner of delivery of services at the point of use. Such legislation would allow an NHS organisation to by-pass public consultation on substantial changes, including the awarding of contracts to multinational corporations, if managers could argue that the proposals would not affect the delivery or range of services on offer at the point of use.[244]

256. There is concern that the Department's real aim is to remove the case law relating to Section 11. Since the Department has lost a number of the legal cases involving the interpretation of Section 11 a change in wording would remove the precedents and give the Department a better chance in court. It would also allow them to rewrite the guidance, which has also caused them trouble:

I have been in really extraordinary situations, usually when I am trying to disagree with government representatives, where they rely on their guidance for the interpretation of the legislation. What happened here in the case last summer in Derbyshire was that they were saying, "We don't need to look at the guidance. The guidance doesn't help". Now, what they mean is that the guidance gives the wrong slant on where they now want the legislation to be which is restrictive rather than expansive.[245]

257. Clearly, there will be some circumstances in which formal Section 11 consultations should not take place either because they would be a waste of money or because they would compromise safety. However, there is little agreement as to exactly what these circumstances should be.

258. Ms Morris noted that where a change is proposed for strong clinical safety reasons, it may not be possible to alter plans on the basis of consultation findings. There was a risk that the public would feel that consultation was pointless as no other decision could realistically be made:

This kind of situation can then damage genuine engagement and consultation processes where there is a real choice to be made and flexibility about the way forward which patients', partners and the wider public can influence. Maybe there should be a different name for an 'informing' type 'consultation' where urgent changes need to be made to differentiate from more interactive processes where there is mutuality in finding potential solutions.[246]

According to Ms Morris, public consultation might also be unnecessary when it involved minor matters such as a small number of beds or the transfer of a specialist service to another site. In such cases:

whilst there should be discussion with key stakeholders around the reasons for such adjustments, full scale public consultation on such issues does not usually seem the best use of resources, or conducive to the NHS operating most effectively.[247]

259. However, Mr Stein thought that a case could be made for consulting in both sets of circumstances. Safety issues, which could sometimes be resolved with moderate expenditure, were used as an excuse for closure. A series of small scale closures could amount to a major reconfiguration. Moreover, consultation about small changes which only affected a few people would not be expensive.[248]

WHAT SHOULD HAPPEN

260. Candy Morris and Richard Stein both agreed that there was no need to amend the law relating to the duty to consult. Existing legislation could work perfectly well if the NHS and Department of Health approached it in the right spirit. The NHS should stop trying to avoid consultations or undertake sham consultations and approach consultation in accordance with the guidance accompanying Section 11.

261. Candy Morris stressed the need for much wider engagement:

NHS organisations need to ensure they invest the appropriate time, commitment, resources and drive to deliver good PPI throughout all the services they provide. This will lead to the desired cultural change, putting patients in a position to truly shape and influence service to improvements for themselves and other people.[249]

She added that PPI could not be seen as an 'add on' by the NHS and that it must be integral to the day-to-day working.

262. Harry Cayton, National Director for Patients and the Public at the Department of Health told us:

I believe that there are five stages to good public involvement. The first is to go where the people are; the second is to share all one's knowledge with them. Usually, people are suspicious and distrustful of consultation when they think the other side is holding its cards to its chest. One needs to put out all the information and be honest about performance and say why something is not safe and something else would be safer; one needs to say what one is doing about public transport and talk seriously about the costs. One needs to share with the public all the information that one has as professionals, listen to them, act and finally tell them what one has done and why. If people try to rush that process, or miss out part of it, or not take any part of it seriously, it will not work.[250]

We heard similar views from other witnesses,[251] while many thought that there was no need to amend the legislation relating to Section 11. This does not mean that there will not be disputes about exactly when to consult, but they should be decided by the establishment of precedents and by following the guidance in the right spirit. Essentially, if there is a strong public feeling that there should be consultation, consultation should take place.

THE ROLE OF THE SECRETARY OF STATE

263. There is much concern about the role of the Secretary of State in consultations, in particular in relation to:

Overturning decisions arrived at following a long period of consultation;

Her failure to refer cases to the Independent Reconfiguration Panel; and

The timing of her interventions.

The effect is to undermine public confidence in the consultation process.

264. Richard Stein complained that most referrals to the Secretary of State concerned objections to the implementation of the Department's own policies. She was, so to speak, acting as a judge in her own case:

The position is that there are the referrals to the Secretary of State, there are the appeals to the Secretary of State to do something and, unfortunately, …that has no credibility whatsoever, and most of the things they do not like are driven by the Secretary of State, so to appeal against their implementation locally to the Secretary of State will not deliver anything, and that is a real shame because that is potentially a mechanism...You do not find that the Secretary of State says, or through the strategic health authority, if that is the way it would happen, "Oy, you can't do that. Go back and do it properly".[252]

265. The NHS Confederation thought that in a number of cases the Secretary of State had made illogical interventions, presumably for political reasons

A major problem with staffing in a Special Care Baby Unit led the Trust to decide that it needed to close the Special Care Baby Unit and consequently the Maternity Unit under emergency powers. The then Secretary of State intervened to order a review, which confirmed that the Trust was correct. The Secretary if State then requested a second review from an independent expert. This broadly confirmed the results of first. A third review by a government agency made some suggestions about managing the interim but did not lead to any substantially different conclusions. Several months later the Unit did close but in the meantime services had been very unsafe.[253]

266. Questioned about referrals, the Minister told us that the threat of referral to the Secretary of State was an important part of the system:

so by the time it gets up to the Secretary of State, the Secretary of State will be looking at a whole range of things that have happened, the overview and scrutiny committee has said, "We don't mind them doing this but the reason why we are referring it on is because we think that is wrong" and in the meantime because of the process the position might be, "Actually, since the overview and scrutiny committee made that referral the strategic health authority has worked with the local primary care trust and addressed that issue, so that particular service is no longer provided over there where it was objected to, but it is going to be provided here". The intervention, if you like, can indirectly work because the process means that people will try to find an agreement so that when it goes up to the Secretary of State it may well be that there has been a compromise.[254]

267. A number of proposals were put forward to improve the situation. Decisions at all levels should be taken transparently. As Nigel Edwards told us:

There have been some examples where sometimes those interventions have seemed to run quite counter to both logic and local opinion and, therefore, I think we should be asking whoever does intervene to be willing to be held to account for the same tests about is it fair, is it logical, is it transparent and is there no spin, which I think were your words, Richard. That seems to me to be a sensible test to apply.[255]

268. One way to do this would be for the Secretary of State to refer all cases to the Independent Reconfiguration Panel and publish their advice, which she does not do at present; indeed, the Independent Reconfiguration Panel is underused:

the independent reconfiguration panel is an interesting idea, although, frankly, it seems to be more an idea than anything else, and it can deal with difficult projects but my understanding is that it has only dealt with a handful, it is completely up to the Secretary of State when she refers to it and it is then up to the Secretary of State what she does with its recommendations—if there was something that was more properly independent and was there on a more regular basis and was more robust ….clearly if it was done properly it would be a good thing.[256]

269. When challenged on why the Secretary of State sent so few cases to the reconfiguration panel the Minister was not able to give a clear answer:

Something like 23 referrals have been received from overview and scrutiny committees and that is out of hundreds of changes that will have gone on with local NHS services. I think four have now been referred to the Independent Review Panel. In making those decisions, the Secretary of State obviously receives advice from strategic health authorities and from the Department. I do not feel that system is working badly.[257]

270. We also heard complaints that the Secretary of State intervenes at too late a stage. Nigel Edwards told us:

I think the point is that there should be a clear set of rules about at what point you intervene and that where possible that intervention should come much earlier in the process than it currently does. It tends to be rather late in the day and in some cases intervention is already in many ways too late because staff have started to leave, consultant posts cannot be filled. I can think of one particular example where, despite the Secretary of State's intervention, the service effectively fell apart and all the Secretary of State did in that particular case was keep a service that was probably dangerous continuing to run, so it did not actually achieve what he had set out to do in the first place.[258]

He continued:

If the question is about intervention on whether the answer is the correct one, many of the interventions have come too late in the day and could and should be made significantly earlier. Last minute intervention is generally unhelpful and on the whole should be discouraged, but it would be hard for us to argue from where we sit that the Secretary of State does not have some rights in this.[259]

271. In theory there is a good system for consulting about important local proposals for change. In practice, there is much frustration and disappointment. Too often it seems to the public that decisions have been made before the consultation takes place. Too often NHS bodies have sought to avoid consultation under Section 11 about major issues. Unfortunately the Department of Health has supported those NHS organisations in trying to limit the scope of Section 11.

272. The Government has proposed changes to clarify when consultation should take place. We are not convinced that this will strengthen rather than weaken the consultation process. Rather than amend the law it may be better to make the existing legislation work by approaching it in the spirit of the statutory guidance in Strengthening Accountability. There is good practice in the NHS. It should be followed.

273. The Secretary of State's interventions following extensive local consultations threatens to undermine public confidence in the consultation procedure system. We are also concerned that few referrals from Overview and Scrutiny Committees are subsequently referred by her to the Independent Reconfiguration Panel. We recommend that the Secretary of State refer all OSC referrals to the Panel. She should also seek the advice of the Panel before exercising her extensive powers to intervene in reconfigurations. The Panel is also available for advice before formal consultation begins and wide use of this advisory service should help to make formal consultation more acceptable.

Patient and public involvement at a national level

274. Recent years have seen increasing involvement of patients and the public in national policy making, beginning with the NHS Plan in 2000, which involved many organised consumer and patient groups. Most recently, the Your Health, Your Care, Your Say White Paper was the product of a very large-scale consultation.

275. By their nature national policies tend to be broad and far reaching in their scope, and are often controversial, with a heavy political overlay. Because of this, there may be a particular danger that consultation is seen merely as window dressing, as a means of achieving post-hoc justification for decisions that have already been taken behind closed doors. Professor Davies described this "cosmetic" type of exercise as giving consultation "a really bad name".[260] However, this raises the difficult issue of exactly how much weight it is desirable to give to the views of patients and the public in decision-making of this scale. While on the one hand paying insufficient heed to the views of patients and the public that have been sought makes a mockery of the consultative process, on the other hand certain key decisions about public spending and the direction of national policy may be more appropriately taken by elected representatives. According to Professor Celia Davies, her experience of running a citizens' council for NICE, the national advisory body on the efficacy and cost effectiveness of different drug treatments, demonstrated that the public in many cases do not want the responsibility for final decision making, but simply to have had their views taken account of in that process:

We found that people were really keen to understand what the issues were and the hard choices that the NHS faced. They wanted to be assured that they had been heard; they wanted to see their arguments in the final document. They did not want to take the final decision; they wanted it to be taken elsewhere.[261]

276. So it seems that national consultation may be a valuable tool, even when final decision-making needs ultimately to rest with elected representatives. However, Professor Davies argued that despite individual "initiatives about which people become enormously enthusiastic", efforts to ensure involvement in regional and Department of Health decisions remain "fragmented" and lack a coherent strategy:

I think that there is still not a clear strategy or map … there is perhaps over-enthusiasm and under-thinking.[262]

277. According to Ed Mayo, the voluntary sector "has real life and energy when it comes to engaging in national policy making" but is sometimes constrained because of a lack of resources. He described the Long Term Medical Conditions Alliance as "operating out of a large shoebox".[263] Proposals for a coalition of voluntary organisations to give a national voice with which to engage in national policy making might help address this.

278. It is crucial that national consultations cannot be open to the accusation of being 'cosmetic'. However, where patient and public viewpoints can make a genuine contribution to debate, consultation on national policy may be valuable both in terms of enhancing accountability and improving policy making, even if final decisions must ultimately rest with elected representatives. We have heard that at a national level patient and public involvement is fragmented and lacking a coherent strategy; we recommend that the Government should address this as a priority.

225 The Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002 (SI 2002, No. 3048) Back

226 Ev 233 (HC 278-II) Back

227 Ev 116 (HC 278-III) Back

228 Ev 199 (HC 278-II) Back

229 Traffic Study over A&E decision, Emma Clark, 24 November 2006, www.thisishertfordshire.co.uk ; see also www.westhertshospitals.nhs.uk/consultation Back

230 Written evidence from Volunteering England (PPI 159) [not printed] Back

231 Ev 256-260 (HC 278-II) Back

232 Ev 132 (HC 278-III) Back

233 Ev 133 (HC 278-III) Back

234 Ev 133 (HC 278-III) Back

235 Ev 132 (HC 278-III) Back

236 Q 359 Back