Getting your ducks in a row on consultation: section 242 NHS Act, urgency and Covid-19

The issue of NHS service reconfiguration and the duty to involve the public has once again come before the High Court. This time, in relation to a decision by United Lincolnshire Hospitals NHS Trust to declare a hospital site as a Covid-19 free facility. Although the duty at section 242 of the NHS Act 2006 applies only to NHS Trusts, equivalent duties apply to NHS commissioners too, and so this decision is relevant to all NHS bodies responsible for decisions on health service reconfiguration.

The facts

On 29 April 2020, NHS care providers were directed that they must increase non-Covid-19 urgent services as soon as possible over the following six weeks. On 12 May 2020, the Trust compiled an internal document setting out proposals to designate one of their hospitals as a Covid-19 free zone. A final proposal was put before three of the Trust’s directors on 2 June 2020. The directors made a decision to publish the document on 8 June 2020 with the final proposal to be presented to the Board during a meeting in public three days later, on 11 June 2020.  At that meeting, the Board made a final decision to designate the proposed hospital as a Covid-19 free zone, until at least 31 March 2021, a consequence being that A&E and some other outpatient services were relocated.

The challenge

The claimant applied for a declaration that the decision was unlawful because the Trust had failed to make adequate arrangements to involve the public, in breach of the duty to involve at section 242 NHS Act 2006. The Trust denied any breach.

The decision

The claimant’s application was successful and the relief sought was granted. Giving judgment, Mr Justice Linden explained that:

• the aim of section 242 is to secure public involvement in decisions about NHS health services [paragraph 112];
• when deciding if the duty at section 242 has been discharged, the key question is whether the arrangements, taken as a whole, are adequate to secure the opportunity for meaningful and fair public involvement in decisions about health service planning and reconfiguration [paragraph 110];
• meaningful public involvement pursuant to the section 242 duty must take place in the formative stages and in advance of a final decision; and
• the element of the duty at section 242(1B)(b) requires that the public have the opportunity to be involved in development of proposals and consideration of the proposals once in a final form.

Mr Justice Linden ruled that, in this case, there had been a “total failure” by the Trust to involve the public in the development of the proposal. Moreover, the limited public involvement undertaken once the proposal was in its final form (summarised at paragraph 124 of the judgment) had been inadequate because it did not enable the public to understand the proposal or give them a fair opportunity to respond.

Urgency and limitation of resources due to pandemic

In its defence, the Trust sought to argue, amongst other things, that limited resources and the urgent and temporary nature of the decision justified a truncated engagement exercise and that such an exercise was compatible with discharge of the duty at section 242. 

Mr Justice Linden found there was insufficient evidence that resources were an issue in this case or that the decision was so urgent as to justify the failure to comply with the section 242 duty. The decision to propose a Covid-19 free hospital had been taken by the Trust on 12 May 2020 at the latest and steps could and should have been taken to involve the public in development and consideration of the proposal from that date. Although frontline staff may not have been available to support involvement, other resources, such as the communications team, were available. 

The judge expressed the view that, in general, caution should be exercised in relation to an argument that limited resources prevented compliance with the duty at section 242. However, in the right circumstances (and where there is clear evidence) such factors may justify a failure to comply with one or more competing statutory duties. He cautioned, however, that, “even if the question squarely arose as to which statutory duty a Trust should breach, it would not follow that s.242 should be sacrificed given its importance.” [paragraph of the judgment 128]

As to the issue of urgency, he expressed the view that attenuated public involvement or a failure to comply with section 242 could be defensible, but only in truly urgent situations, and even then likely only where the effect will apply for a short period and where it will be of obvious benefit to all service users. “The more impactful and the longer term the proposal or decision”, Mr Justice Linden notes, “the greater the degree of involvement of service users’ section 242 will require”. [paragraph of the judgment 131] 

In summary

The key takeaway here is that NHS bodies must continue to make adequate arrangements to secure the opportunity for public involvement at every stage of the decision-making process as it concerns delivery of health services. 

In circumstances where an NHS body is genuinely faced with an urgent reconfiguration decision or circumstances where resource limitation will impact on public involvement exercises, then an attenuated involvement exercise or foregoing involvement entirely may be justified, but the NHS body will need to take into consideration a range of relevant factors, including the value of the proposal to service users generally and the duration for which it will have effect. Not only that, but there must be a body of contemporaneous evidence to support the decision if it is to be defensible in court.

The full judgment can be read here.

If you need help with service reconfiguration and public involvement then do not hesitate to contact our specialist lawyers.