Evidence submitted by Richard Stein, Leigh
Day & Co (PPI 169)
INTRODUCTION
1. Richard Stein is a solicitor and partner
in Leigh Day & Co, Solicitors. This London based practice
carries out a wide range of public interest and claimant litigation
on behalf of individuals and NGOs.
2. Richard Stein has for 13 years specialised
in claimant judicial review, challenging decisions of government
departments, local authorities and quangos on behalf of individuals
and local and national voluntary sector groups on topics across
the whole spectrum of functions carried out by the state.
3. Amongst his particular areas of specialism
is the range of issues which concern patients both as individuals
and groups within the NHS. As part of this work, he has advised
and represented a wide range of groups and brought a large number
of challenges to failures by NHS bodies to carry out lawful consultation.
These include the cases of R v North East Devon Health Authority
ex parte Pow and others (1997), R v Worcestershire Health
Authority ex parte Kidderminster and District Community Health
Council (1999) and Smith v North East Derbyshire PCT
(2006). He is currently conducting a range of other judicial review
cases in the High Court relating to questions concerning the application
of (among others) section 11 Health and Social Care Act 2001 (HSCA).
He has advised on a much larger number of cases in which pre-action
letters reminding NHS bodies of their consultation duties has
resulted in decisions by those bodies to reconsider and to consult
lawfully.
Why is patient involvement particularly important
within the NHS?
4. The structure and nature of the NHS makes
the need for patient involvement in its decision making particularly
vital. The lack of direct public accountability of the structures
of the NHS is a major factor. This is particularly problematic
in view of the requirement imposed on NHS Trusts to adopt local
priorities within the national policy framework. As a result
we have local bodies which are at the same time unresponsive to
local concerns while at the same time setting local priorities
based on their assessment of local needs.
5. Patient involvement is particularly important
within the National Health Service because of the relationship
the public has with it. The NHS is a safety net which we all rely
on, even when we are well and not currently using it. The fact
that it is there and that we can rely on it looking after our
needs and those of our families and friends at a time of crisis
is a major comfort. Whether the NHS likes it or not, patients
have views of their own on how the service ought to be configured
and delivered. It is quite possible that these views are frequently
ill informed and out of date. However, unless patients are brought
along with fundamental changes being made, they will cause huge
anxiety and can provoke levels of public discontent not frequently
seen in Britain. Hospital closure proposals have, as members of
the Committee will be aware, provoked local demonstrations all
around the country. We have recently even seen government ministers
demonstrating against local decisions which implement government
policy and at least one Member of Parliament was elected because
of his stance on the downgrading of the local hospital.
What attempts were made to change the NHS culture?
6. At the beginning of the millennium, the
need to create a new partnership between the NHS and patients
& public was recognised by this government. They acknowledged
that over a number of years, the NHS had developed a particular
culture of secrecy. Significant decisions were being made in private
wherever possible and there was almost no recognition that patients
and the public have any contribution to make to the setting of
priorities and decision making.
7. An important part of the attempt to change
this culture was the enacting of section 11 Health & Social
Care Act 2001.
8. The provisions relating to Overview and
Scrutiny (section 7 HSCA 2001 and Regulations made under it) were
functions which replaced (at least to some extent) the functions
of the abolished Community Health Councils. The section 11 obligation
was a new attempt to address factors mentioned above and a clear
recognition by government of the imperative for patients to feel
engaged with the way that their health service was developing.
9. At the time of this change, the government
was feeling optimistic about the future of the NHS—with
massive increases in NHS spending planned for the following years.
A more open and involving approach was welcome. Perhaps, not surprisingly,
it was felt that asking people what they thought about changes
was something that would be easy at times when the health service
was to be improved and modernised. All of this is reflected in
the wording of section 11 and the Department of Health Guidance
Strengthening Accountability—Involving Patients
and the Public (February 2003)
http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/Publications
PolicyAndGuidanceArticle/fs/en?CONTENT—ID=4008005&chk=rVmyFE,
which was introduced to explain how to implement it.
10. In addition to this, the Cabinet Office
Code of Practice on Consultation, issued in January 2004, also
demonstrated that the government recognised the need for more
extensive and coherent public involvement in important public
decision making. Bodies such as the NHS were expressly brought
within the scope of the Code.
11. The wording of section 11 HSCA 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 and proposals is—quite
rightly—clearly reflected within the Guidance.
12. David Lammy, the then Parliamentary
Under Secretary of State for Health said in the foreword to the
Guidance:
"It is clear to me times have changed.
Patients and the public rightly expect to be involved and consulted
in all aspects of their lives—they are more likely to ask
questions and are less in awe of experts. There are more people
wanting to `have a say' in decision-making and public authorities
are more open to scrutiny and challenge."
13. In the body of the guidance itself (at
page 1) it states as follows:
"`Involving and consulting' has a particular
meaning in the context of section 11. It means discussing with
patients and the public their ideas, your plans, their experiences,
why services need to change, what they want from services, how
to make the best use of resources and so on. It is more about
changing attitudes within the NHS and the way the NHS works than
laying down rules for procedures.
What is important is that involvement and
consultation is adequate both in terms of time and contract and
appropriate to the scale of the issue being considered. Part of
the involvement process may be to discuss with stakeholders the
most appropriate arrangements for any further involvement. For
example it may become clear that:
— more effort needs to be made to
involve the harder-to-reach groups that may be affected by the
proposed change or more information needs to be given; or
— a formal consultation process
lasting for a set period of time is not necessary....
Patient and public involvement is central
to developing any organisation. NHS organisations must recognise
and value the benefits of listening and responding to patients
and recognise that the patient's experience is the catalyst for
doing things differently to improve the way services are delivered.
Real patient and public involvement is not
about ticking boxes, it is about NHS organisations developing
constructive relationships, building strong partnerships and communicating
effectively. For patients' experience of health services to really
improve, NHS staff will need to have ongoing and meaningful dialogue
with them, their carers and the public about improving and developing
services".
14. And then later on page 2, it continues:
"The new duty is the continuation of
a process that will strengthen accountability to patients and
the public and make sure there is transparency and openness in
decision making procedure. We must develop and adapt health services
around the needs of patients and the public which will build trust
and confidence between local communities and the NHS."
15. We would invite the Committee to read
the 8 pages of the Guidance which set out extremely clearly how
the new approach embraced by section 11 is central to the NHS.
This approach is also embodied in many other publications from
the Department of Health at the time.
Why is the distinction between "involvement"
and "consultation" so important?
16. Involvement requires patients or their
representatives to be included as part of all the activities involved
in making decisions about the running of the NHS out of which
ideas about possible changes arise. Consultation takes place once
the need for a change, and possibly even the preferred change
option, have been identified.
17. The reason why "involvement"
rather than just "consultation" is essential in the
NHS relates back to the culture of secrecy in the NHS and the
lack of direct participation by public representatives in the
structures of NHS Trusts.
18. As for the people involved, although
Non-executive Directors of NHS Trusts are, in theory although
not always in practice, appointed from the local community, they
are primarily corporate members of the Trust Board, sharing responsibility
with Executive Directors for the delivery of the organisation's
statutory responsibilities. They are neither representative of
nor accountable to the community from where they were drawn. Accordingly,
if the public is to feel any ownership of the services delivered
by the NHS, it is essential that patients or their representatives
are engaged within the process of developing the service and operating
the service at every level.
19. The Guidance from the Department of
Health makes it clear that "involvement" does not always
mean a full-blown consultation with patients and public is required.
The scale of "involvement" required will relate directly
to the scale and nature of the developments taking place within
the local NHS service. Minor matters may well require no more
than a mention at meetings at which representatives of patients
are present. At the other extreme, where large developments are
proposed, a full Cabinet Office Code compliant consultation will
be required.
What went wrong?
20. Unfortunately, in the early years of
the millennium when there was optimism about the future of the
NHS, the opportunity was not generally adequately grasped to develop
the new open, outward looking and patient involving culture advocated
by the Department of Health. Decision making in the NHS continued
to happen in private whenever possible.
21. Against that background, when the going
got tougher over the last few years a great retrenchment took
place—unsurprisingly, decision-makers would rather take
unpopular decisions out of the glare of scrutiny which comes from
involving and consulting patients. And so, once it became clear
that the substantial extra resources provided to the NHS would
not deliver a service to meet all of the needs and expectations
of the community, the attraction of involving patients or their
representatives was reduced still further.
22. 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.
23. It is perhaps understandable that whereas
managers of NHS Trusts would happily meet with patient representatives
to discuss positive developments such as new and expanding services,
they would be much less keen to seek their views on cuts and service
reductions. In practice, they just don't do it! Unfortunately,
such failures have led to a growing distrust by the public of
the management of the NHS—ironic given that the NHS itself
is such a valued organisation. Accordingly, in situations where
changes to service configuration are truly about modernising and
improving services, because patients and their representatives
have not been appropriately involved in other decisions or in
the steps leading up to these decisions, the announcement of such
changes which would otherwise be welcomed by patients, are met
with disapproval.
24. All too often, consultation by public
bodies (and NHS bodies appear particularly guilty of this at times)
seems like a process undertaken simply to be seen to comply with
an obligation to consult, but without any enthusiasm for it and
certainly not with any intention to change their minds in response
to the views expressed by consultees. This invalidates the consultation—and
indeed renders the processes which are gone through both meaningless
and manipulative. In effect consultation often feels more like
selling a decision that has already been taken rather than genuinely
asking for views. That is why "involvement"—and
the expectation that involvement and consultation will take place
at the early formative stage, before clear options have even been
formulated—is so important. The whole approach is patronising
and fails to recognise the contribution patients' experience makes
to improvements in the service.
25. A particular example of this has arisen
recently in Hemel Hempsted, where the proposed downgrading of
Dacorum Hospital to a community hospital has provoked substantial
concern and unrest locally. (This is now the subject of judicial
review proceedings—Bullmore v West Hertfordshire Hospitals
NHS Trust). Here the Trust employed consultants to "manage"
the consultation process. The placing of the consultant between
the Trust and the public has substantially added to the local
disquiet about the proposed changes.
26. As a result, over recent years, there
appear to have been large numbers of important changes to service
provision which have been made without complying with the obligations
to involve patients or representatives under section 11 HSCA.
Leigh Day & Co have been involved in resisting attempts to
make such changes in secret and rushing them through without patient
involvement. Although some have attempted to front out a legal
challenge, most Trusts have, once they have received legal advice
from their advisors, backed off and decided at that stage to carry
out proper patient involvement under section 11.
27. Another worrying area is the attempt
to run down NHS services without transparency in the decision-making
and thus by stealth. 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 (and also the requirement to consult Health
Overview and Scrutiny Committees under section 7 HSCA 2001). When
such attempts to bypass the section 11 obligation provoke threats
of legal action on behalf or patients, having taken legal advice
Trusts frequently decide to back off and carry out the appropriate
level of patient involvement and consultation.
28. A good example of such events were those
which surrounded Hornsea Cottage Hospital in East Yorkshire. In
September 2006, without any patient involvement or consultation
with the Health Overview & Scrutiny Committee, the Yorkshire
Wolds & Coast NHS PCT announced the decision to end in-patient
admissions immediately and to close the 12 bed in-patient ward
at Hornsea Cottage Hospital temporarily (but indefinitely) on
1 October. The justification for not carrying out their consultation/patient
involvement duties was "that the current staffing levels
... are increasing the risks to patients and staff". Following
a threat of legal action the decisions were reversed and the statutory
obligations were complied with.
29. The widespread failure to implement
section 11 is not just caused by local panic by local NHS Trusts
in the face of their current difficulties. Despite the clear policy
imperatives identified in Department of Health guidance above,
the attempts to narrow the scope of the obligations under section
11 are supported by the Department of Health itself. This was
demonstrated by the approach taken by the Department's lawyers
in the case mentioned below Smith v North East Derbyshire PCT
(2006). In that case, Counsel for the Department of Health was
keen to limit the extent of the obligation as far as possible,
in conflict with the wording of his client's own Guidance.
Is the current position under section 11 unworkable
and/or inappropriate?
30. The meaning and implications of section
11 HSCA 2001 were considered by Mr Justice Collins in his judgment
given in May 2006 in Smith v North East Derbyshire PCT.
These aspects of the case were not questioned in the subsequent
appeal to the Court of Appeal. Mr Justice Collins recognised that
section 11 imposed a very wide duty on NHS bodies.
31. Although the obligations may superficially
seem to be substantial and unduly burdensome, Mr Justice Collins
indicated that the sensible approach by a NHS body would be, where
in doubt, to involve the appropriate Patients' Forum, as the "experts"
in this field. Although this might seems like an extremely onerous
responsibility, if the required culture change had taken place
within the NHS, ensuring that its decision making is carried out
as far as possible in public, the obligation would become a routine
one. Providing that patients' representatives are involved, in
all but the few decisions which do properly require secrecy, the
basic elements of the obligation are covered. It is then up to
the patients' representatives to advise the NHS body of the circumstances
in which a greater degree of patient involvement is required.
Whether or not Patients' Forums or LINKs are capable of shouldering
this task is central to this investigation by the Health Committee.
32. It is of great concern that even now
so many meetings of NHS Trusts that are considering issues of
importance to patients and are in no way properly confidential
are conducted in private. It is difficult to see how it can be
justified to fail to include patients' representatives in such
meetings as a matter of course.
33. Perhaps of even greater concern is that,
if anything, the movement appears to be in the direction of increased
secrecy rather than openness. As members of the Committee may
be aware, the Chelsea and Westminster Hospital NHS Foundation
Trust has decided that all of its Board Meetings will be held
in private. As a result, all of the important decisions about
the nature and provision of health services by this large London
teaching hospital, using public funds, will be made without the
public having the right even to hear what is being decided, let
alone to engage in the process.
34. A further area of concern relates to
the wholesale transfer of NHS services to independent sector treatment
centres (as an example of a "centrally led scheme")
without patient involvement or consultation. We note that the
Health Committee was advised by the Department of Health in its
response to its Report on Independent Treatment Centres (Fourth
Report Session 2005-06) (para 66, 69 and 70) that consultation
would be undertaken in relation to such decisions. But this has
not happened in practice. In fact it has been determined personally
by Ministers in the Department of Health that no patient involvement
is required under section 11 in relation to ISTCs (the emergence
of which post-dates the new "open" world launched by
the 2001 Act). This decision is apparently justified by reliance
upon the fact that the ISTCs are not promoted locally but at a
national level by the Department of Health. However, whether or
not that is correct in law, such an approach fails to recognise
the fundamental impact that ISTCs will have without any doubt
upon the local configuration of NHS services and accordingly are
caught by section 11.
35. Whether or not patient involvement is
required in relation to ISTCs is the subject of litigation and
will be considered by the High Court in the context of ISTC provision
in North Bristol. The case of Fudge v The Secretary of State
for Health and others will be before the court in late March
2007. And, of course, even if the court holds that s11 is technically
not engaged in such a case, the Department's stance represents
a huge departure from the spirit of public involvement which the
2001 Act was supposed to bring about (as well as from what it
told the Committee). Nor, in our view, can it be said (as the
Department has claimed) that public consultation and involvement
could not take place in relation to the bringing forward of ISTC
proposals. For example, the Department, in conjunction (albeit
behind the scenes) with SHAs and PCTs, frames the regime (including,
for example, the "case mix") which the independent sector
is then asked to bid to undertake. Such decisions could—and
should—plainly be informed by local patient views.
36. No patient involvement or consultation
was carried out in relation to this or other decisions relating
to ISTCs. It is perhaps surprising and also of concern that the
Secretary of State for Health is so reluctant for the NHS to engage
with local patients and their representatives about what is such
an important plank of her strategy for modernising and improving
the NHS across the country.
37. Another similar example of concern is
the decision at Lymington in Hampshire. As the Committee may be
aware, on the 21 December 2006 it was announced that the new PFI
Lymington New Forest Hospital due to open in the spring of 2007
would be entirely run as an ISTC. The services provided will not
just be elective services as have been covered by other ISTCs
but will include emergency and all other services delivered at
that hospital. The whole proposal had been developed in secret
with no patient involvement or consultation. Again, it is surprising
that the announcement of such an important development of government
policy has been effectively buried in the Christmas shopping period.
What can be done to avoid litigation?
38. We have been asked to address this specific
question. The obvious and straightforward answer is for the NHS
to carry out its obligations under section 11—to involve
patients in its decision making processes. As has been made clear
above, all this requires is a change of culture from secrecy towards
openness. Just as local government has, over recent years, become
better at open and transparent decision-making, so too now must
the health service. The legal challenges brought in this field
very rarely relate to the substance of the decisions made by the
NHS bodies. These are generally simple procedural challenges which
succeed because of the failures by NHS bodies to carry out their
obligations to involve and consult. Providing that these obligations
are carried out properly and all representations and other factors
are properly considered, it is extremely unlikely that there would
be any basis for challenging the outcome of the process, however
unpopular.
What is the impact of the proposed changes to
section 11?
39. The proposal to limit those measures
which require patient involvement under section 11 to those which
are "significant" is, in our view unhelpful. It is difficult
to see how any measure which is of concern to patients can be
"insignificant". It is hard to see how such a change
would have a real impact on the scope of section 11. The approach
of Mr Justice Collins in his judgment in the Smith case
and the new culture embodied in the Department of Health Guidance
will still apply. More helpful would be a renewed commitment from
Ministers to the change of culture embodied in section 11 and
the Department's Guidance.
Should Patients' Forums be replaced by LINKs?
40. Our involvement with Patients' Forums
has been indirect and accordingly we do not have detailed evidence
to give the Committee on how they should be developed.
41. The structure which provides the framework
for patients and the public to engage with the NHS structures
is clearly central to the success or otherwise of the culture
change to deliver a patient focussed service which is so vital
to the future of the NHS.
42. At present, in our experience, Patients'
Forums are rarely effective in providing a patients' view to the
NHS. This would seem to us to be due to of a range of factors,
including the following:
— Inadequate financial resources
and organisational support.
— Lack of expertise in health
related matters.
— Failure by local NHS bodies
to encourage or enhance their status as important parts of the
local NHS decision making structures or to develop their capacity
to engage effectively.
— Frequently ineffectual and dominated
by unrepresentative individuals with their own hobby horses to
ride.
43. Any changes to Patients' Forums must
therefore enhance their effectiveness in representing the views
and concerns of patients to NHS Trusts.
CONCLUSION
44. The NHS is widely considered to be in
crisis. The government has a different view and considers rather
that it is going through a difficult process of "creative
disruption," a modernising transition which is essential
for its survival. Which ever of these views is true, one of the
major failures of the NHS over the last few years (and a large
contributor to the feeling of crisis) has been its inability to
engage the public in serious debates about its future. As was
recognised by this government when it introduced section 11 HSCA
a patient centred approach is essential to the future of the NHS.
Section 11 is central to achieving that. Even though it may be
a difficult transition, avoiding it is not an option.
Richard Stein
Leigh Day & Co Solicitors
19 February 2007
| 
