Sustainability and Transformation Plans – reconfiguration and service change

There has been a flurry of activity/excitement/concern* about 44 Sustainability and Transformation Plans (STPs) which have been leaked already or which are about to be published.

Some are referring to them as Sticky Toffee Puddings. Others, more ominously, have likened the goings on in theirs to the Blair Witch Project….

The STPs across the country contain various proposals many of which are likely to be controversial. They may relate to the closure of a community hospital, closure of A+E departments, downgrading of A+Es to MIUs, merging of hospitals, redesign of services, consolidation of services on fewer sites – the list goes on.

It is of vital importance that patient and public engagement is properly understood by all the constituent parts of the STP – both commissioners and providers. It is a statutory duty, which goes wider than the obligation to consult on major changes, and it is an ongoing process.

It is the statutory bodies that make up the STP (which is not a legal entity itself) who could be on the receiving end of a Judicial Review challenge in respect of:

• Acting illegally
• Acting irrationally
• Not abiding by procedural fairness
• Breaching a legitimate expectation
• Breaching the HRA

Unfortunately the prospect of a legal challenge is quite real and with a challenge will, at best, come a delay in implementation of plans and, at worst, the decision being sent back by the Administrative Court to be reconsulted on and taken again.

Some STPs have been criticised for setting out high level intentions rather than detailed options or proposals. However in terms of the do’s and don’ts we set out below that is right in law. Courts have made clear that public bodies are entitled to work up formal proposals and then go out to consult on those. But – and this is an important “but” – the statutory obligations on commissioners and providers, along with relevant NHS England guidance, make it plain that the public and patients should be engaged in the development of proposals, not simply consulted on when those proposals have been worked up.

* take your pick

Do’s

• Check that you have clearly publicised arrangements in place which set out how patients are to be involved in all stages of the commissioning process, not simply decision making.
• Start planning your engagement strategy as soon as you begin any discussions about a proposed service change, big or small. [Some may have missed the boat on this already?!]. A consultation must then take place at a time when proposals are still at a formative stage.
• Be very clear and honest in public documents about what you are planning and why, what it will mean for patients and why and how you want to hear from them. You must give people enough information to enable them to make meaningful comments and suggestions.
• Keep an open mind. You can work on recommended options to present for consultation but you must be prepared to listen to feedback and be open to the possibility of changing your mind.
• Only make final decisions when responses from the public are received.
• Involve your local authority Overview and Scrutiny Committee and the Health and Wellbeing board early.
• Become familiar with relevant NHS England guidance including: 
  Engaging Local People – a guide for local areas developing Sustainability and Transformation plans and Planning, Assuring and Delivering Service Changes for Patients
• Remember that consultation isn't a vote. You're allowed to make unpopular decisions but will need to be very clear about why you made them.
• Take legal advice if a change will be controversial. You are likely to need your lawyers less if you talk to them early – honest!

Don’ts

• Hide or spin the reasons for a proposed change. The courts are very clear on this: if the reason you're proposing something is financial, you must say so. Likewise with regard to patient safety. Spell out that no change is not an option.
• In reality take decisions before consulting.
• Make assumptions, even in internal emails. A throwaway line saying something like "as we move towards the closure of the service" may well become public if you receive a Freedom of Information Act request, or if the court orders disclosure of your files. Try telling a High Court judge you hadn't prejudged matters if they were to read an email like that.
• Forget Andrew Lansley's "four tests" – they're still out there and the courts have confirmed that they still matter.
• Make promises without very careful thought. Public bodies are expected to keep promises and the courts can make them do so.

By following the relevant law and guidance you can minimise the risk of a claim being brought and /or stand a better chance of mounting a successful defence.

We are currently advising numerous commissioners and providers so do get in touch for further more detailed guidance and advice.