How and when the Secretary of State can intervene with changes to NHS local services

The new powers, contained in the Health and Care Act 2022, will enable the Secretary of State (SoS) to “call-in” a proposal for NHS service reconfiguration and take or re-take any decision that could have been taken by the NHS commissioning body in respect of that proposal.  

New Legal Duties

Complementing the powers of intervention are two new legal duties:

1. A duty on the responsible NHS commissioner to notify the SoS when they (or an NHS provider) have a proposal under consideration for a substantial development of the health service in a local authority area; or for a substantial variation in the provision of a such a service (a specific form has been produced for the purpose)
2. A duty requiring NHS commissioning bodies, NHS trusts or NHS foundation trusts to provide the SoS with any information or assistance required for the purposes of carrying out any functions in relation to the new reconfiguration powers.

Regarding the first duty, the view of the Health Overview and Scrutiny Committee (HOSC) on the proposal should be considered and made clear when deciding to notify to the SoS.

There are a couple of limited exemptions to the duty too.

With regards to temporary service change, if the NHS commissioning body is satisfied that a decision has to be taken without allowing time for consultation with the HOSC because of a safety or welfare risk to patients/staff, then this wouldn't be notifiable either. However, while there's no set length for a temporary service change, ministers expect clear plans for either reverting those changes or developing plans for permanent closure.

New statutory guidance

The Department of Health and Social Care (DHSC) has published new statutory guidance on the operation of the new powers, titled Reconfiguring NHS services - ministerial intervention powers.

The new guidance is essential reading for anyone involved in NHS reconfiguration, but a summary of key takeaways on how the powers will operate is provided below.

What impact will the new powers have on service reconfiguration?

The principles of service reconfiguration remains unchanged: NHS service change remains first and foremost a matter for local management and should still be clinically led and follow appropriate engagement with local authority scrutiny committees, people, and communities. NHS England remains responsible for assuring substantial NHS service change pre-public consultation.

Although local authority health scrutiny functions remain unchanged, the power of referral to the SoS, contained in Regulation 23 of The Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, will cease to apply other than to legacy matters from 31 January 2024 in order to make way for the new call-in power and request process.

The DHSC’s guidance on local authority scrutiny functions has been updated to account for the incoming powers. 

How will the new call-in requests work?

The SoS may exercise the call-in power of their own initiative, or in response to a written “call-in” request which anyone can submit.

A dedicated call-in request form is available to the public online, but emails and letters containing the relevant information will also be accepted.

Despite the accessibility of the call-in request form, the guidance is clear that the SoS will use the call-in power sparingly. We are told that DHSC expect it to be used in “exceptional situations”.

It's important to note that the guidance makes clear that every effort must be made to resolve concerns about proposals at the local level before a call-in request is submitted. Failure to do so is likely to result in a refusal by the SoS to exercise the power. Informal advice is available from the Independent Review Panel (IRP).

In addition to providing evidence that reasonable attempts have been made to try to resolve concerns locally, a call-in request must also state how it meets one of the following criteria:

1. There are concerns with the process that have been followed by the NHS commissioning body or NHS provider (for example, the adequacy of the content of consultation with the public or the time allowed for consultation with the public; how options have been developed).
2. A decision has been made and there are concerns that a proposal isn't in the best interests of the health service in the area.

What factors will the SoS consider in deciding whether to exercise the call-in power?

In addition to the above, the guidance states that the SoS may consider:

1. Whether the reconfiguration is considered substantial
2. The regional or national significance of the reconfiguration on quality, safety or the effectiveness of services.

All requests will be considered but it's ultimately a matter for the SoS whether to exercise the call-in power. 

What's the process that'll be followed when a proposal is called-in?

If the SoS decides to call-in a proposal, the process for a determination is as follows:

1. The SoS issues a direction letter to the relevant NHS commissioner communicating the decision to call-in the proposal, copying in the relevant stakeholders. The date on the letter is the date from which the process starts.
2. The SoS may seek advice from the IRP on the proposal. Where applicable, the NHS commissioning body shall have 10 working days to provide any evidence requested by the IRP.
3. Once notified of a call-in, the NHS commissioner mustn't take any further steps in relation to the proposal except to such extent as permitted in the direction letter.
4. Before making any decisions, the SoS will provide interested parties with the opportunity to make representations in relation to the proposal.
5. When formulating a decision on a called-in proposal, the SoS will consider the submitted evidence and representations. In addition, they'll consider value for money and legal duties, including those that concern reducing health inequalities and seeking to secure continuous improvement in the quality of health services.
6. Any decisions regarding called-in proposals must be taken within six months of the date on the direction letter.
7. Once the SoS has finished considering the proposal, they'll notify the NHS commissioning body and communicate any decisions made in respect of the proposal.
8. Decisions will be published on GOV.UK webpage together with a summary of any representations received by the interested parties.
9. Any decision by the SoS is final and the NHS commissioning body must give effect to that decision. 

In regards to this final point, we'd note that a decision by the SoS will still be amenable to judicial review.

Outcomes

These could be:

• A proposal should or shouldn't proceed, or should proceed in a modified form.
• Particular results should be achieved by the NHS commissioning body in taking decisions in relation to the proposal
• Procedural or other steps should, or shouldn't, be taken.
• To retake any decision previously taken by the NHS commissioning body

Comments

While these new powers are certainly likely to shake up reconfiguration, and in our view are inevitably going to lead to greater overall scrutiny, it remains to be seen just how often the call-in power will be used and whether concerns about politicisation of NHS reconfiguration become a reality. The guidance does emphasise that: “Most reconfigurations will continue to be managed at a local level and will not require ministerial intervention”.

Integrated Care Systems hoping to minimise the impact of the new powers on their service changes will need to ensure good working knowledge of reconfiguration, adherence to due process, and effective joint working with local authorities in areas they operate.

We’d also expect the availability of the call-in requests to reduce the amount of reconfiguration challenges that reach the courts, which is likely to be welcome news for commissioners.