A Freedom of Information request has been sent to NHS England, asking them to explain their apparent refusal to allow Lincolnshire NHS organisations to consult on proposals for cuts and changes to acute and emergency services – including Grantham A&E – until capital funding is secured for the shake up plans.
We will report NHS England’s response in due course.
Last July, Lincolnshire Sustainability and Transformation Partnership told the chair of the Health Scrutiny Committee,
“It is a legal requirement that the NHS has capital funds in place for any proposed changes, ahead of consultation on potential changes with the public. Therefore, the local NHS are unable to commit to a [sic] potential dates for the consultation…”
When I questioned Cllr Macey about this at the time, he told me NHS England was the source of this statement.
An NHS organisation cannot consult on a decision that it’s already made
NHS England’s decision seems to run counter to the Gunning Principles that require that all public consultations must observe the law.
The first Gunning legal principle states that:
Consultation should occur when proposals are at a formative stage (i.e. there is no firm plan in place).
A barrister’s interpretation of this principle(i) ‘Proposal at a formative stage’ is:
“The obvious point of Gunning principle (i) is that the decision-maker cannot consult on a decision that it has already made. Otherwise, consultation is not only unfair – the outcome has been pre-determined — but it is pointless.”Clive Sheldon QC, CONSULTATION AND LEGITIMATE EXPECTATIONS
Following the “temporary” closure at night of Grantham A&E nearly four year ago, people in Grantham and the rest of Lincolnshire – as well as the Health Scrutiny Committee – have had no opportunity to take part in any consultation about the future of acute and emergency services in the county.
Repeated pleas by campaigners for public consultation on Lincolnshire Teaching Hospitals’ proposals have fallen on deaf ears.
Now NHS England has to explain how it is lawful for them to delay consultation until the decisions have been made and capital funding is in place.
Why hasn’t Lincs Health Scrutiny Committee asked NHS England to explain their delay to consultation?
Last July, I suggested to Cllr Carl Macey that the Health Scrutiny Committee could call in NHS England and ask them to explain how it is possible for Lincolnshire NHS organisations to hold a public consultation that complies with the law as set out in the Gunning Principles, given NHS England’s apparent embargo on consultation until capital funding is in place for the proposed changes.
However, the Health Scrutiny Committee Minutes from July 2019 – Feb 2020 don’t record any such attendance by NHS England.
July 2019 Facebook conversation with Cllr Carl Macey
For the record, here’s the Facebook conversation between Cllr Carl Macey and me about the Acute Services Review and Public Consultation information from Lincs Sustainability and Transformation Partnership.
Cllr Carl Macey please can you shed light on this, which I believe was presented to the Lincs Health Scrutiny Committee today? It seems to be factually wrong to say that a consultation cannot take place until the NHS organisation has secured capital funding, so the local NHS organisations cannot say when the acute services consultation will take place.
If the hospitals trust were to secure capital funding before consulting the public, it would mean the proposal was no longer at a formative stage, which consultation law requires to be the case. And it would therefore mean the outcome of the consultation was predetermined, which is unlawful.
So surely no one is going to give them capital funding until they’ve consulted on their proposals and made a decision that has been accepted by Scrutiny? Quite apart from the fact that securing capital funding before consultation would amount to predetermination of the outcome of the consultation – if Scrutiny were to refer the post-consultation decision to the SoS, the SoS could stop the planned changes or require them to be significantly revised.
The hospital cuts and centralisation consultation where I live, in Calderdale, went ahead well before the hospitals Trust secured capital funding. So it is clearly not the case that a consultation cannot take place until the NHS organisation has secured capital funding.
Cllr Carl Macey:
“Hi Jenny, your posts makes a good point, However, section 7.3 of NHS England’s guidance [Planning, Assuring and Delivering Service Change for Patients] is clear on this:
7.3 Financial considerations – revenue and capital
For each option to be shared with the public, consideration of the financial proposal in terms of both capital and revenue and its sustainability should be made in conjunction with NHS England and NHS Improvement prior to launching consultation. It is essential that only those options that are sustainable in service, economic and financial terms are offered publicly. No service change option should be exposed for public engagement/consultation unless prior to launch there is a high degree of confidence that it would be capable of being delivered as proposed, that it does not imply an unsustainable level of capital expenditure and/or projected spend profiles that cannot be reconciled to available resources and will not be affordable in revenue terms. All options must be affordable within commissioner revenue allocations and provider revenue financial targets.
Capital resources available to the NHS for transformational change are currently severely constrained and a degree of national phasing/prioritisation will be inevitable at least for the remainder of the current Spending Review Period. Service change schemes which require capital financing will require the explicit support of NHS England and NHS Improvement in writing and, where appropriate, following discussion with the Department of Health and Social Care before public consultation on options requiring capital commences.
I’m not sure whether the guidance is statutory (a ‘legal’ requirement), but all local NHS organisations are definitely going to follow it.”
New consultation guidance relating to NHS Long Term Plan
‘Thanks Carl Macey, that is new guidance relating to the NHS Long Term Plan I think. But it doesn’t say that “It is a legal requirement that the NHS has capital funds in place for any proposed changes, ahead of consultation on potential changes with the public.”
“consideration of the financial proposal in terms of both capital and revenue and its sustainability should be made in conjunction with NHS England and NHS Improvement prior to launching consultation…No service change option should be exposed for public engagement/consultation unless prior to launch there is a high degree of confidence that it would be capable of being delivered as proposed, that it does not imply an unsustainable level of capital expenditure…that cannot be reconciled to available resources and will not be affordable in revenue terms… Service change schemes which require capital financing will require the explicit support of NHS England and NHS Improvement in writing and, where appropriate, following discussion with the Department of Health and Social Care before public consultation on options requiring capital commences.”
That is quite a different kettle of fish, as far as I can see, from saying it’s a legal requirement to have capital funds in place. So I’m surprised that NHS organisations are interpreting it to mean that they can’t consult until/unless they have the capital funding in place. Which NHS organisations have actually said this? Local or national?
Big BS Alert
At this point, if that is what they really are saying, I would raise a big BS alert. “Explicit support” is different from “having the capital funds in place” – which would definitely amount to predetermination of the outcome of the consultation.
“Explicit support” means – at least according to the way things worked in Calderdale and Kirklees – that NHS Improvement came to the Scrutiny Committee and said, they approved the proposed use of capital funding but there’s a competitive process for bidding for capital funding so they couldn’t say if the hospital trust would get the funding when they applied for it.
Get the quangos into a public health scrutiny meeting!
“Maybe if they’ve not already done this, Lincs Health Scrutiny should get NHSI/E into a public scrutiny meeting and ask them to clarify if they really mean that public consultation can only proceed once the Trust has secured capital funding. And if so, how that sits with the requirement to consult at a formative stage of the proposal and to avoid predetermining the outcome of the consultation?”
We are told from the STP that NHSE have been heavily involved with the proposals and that the Lincs STP are following direct guidance from them, however currently engagement continues and will do until the end of this year, the committee currently are not indicating any level of support for the options proposed and are only providing concerns and feedback in a written format from what is presented, the document listed at the top was not presented to us, but stemmed from a question raised in regards to when consultation begins what areas precisely will there consultation be on and this was the STP’s written response
That is really interesting info. So who wrote the doc at the top of this post and who asked the question? I am almost certain the STP’s written response is wrong and I still think it would be a good idea for scrutiny to call in both them and NHSI/E to get them to explain how this can possibly be true, given the rule about consultation taking place at a formative stage and not determining the outcome of the consultation.
In all fairness we have been needing to bring NHSE/I in for a long time now. Isn’t it time the health scrutiny committee brought them in Carl Macey?
I requested the info from Lincs STP, Jenny, so we had clarity on what would be part of the consultation when it took place and this was written by Simon HSC officer from the information received from Lincs STP
You can read the FOI request to NHS England here:
Here’s NHSE/I’s FOI response, dated 18 September 2020
Freedom of Information request (Our Ref: FOI-2003-1151042) NHSE:0141992
NHS England holds this information and we will answer your questions individually for ease of reference:
1. Did NHS England tell Lincolnshire NHS organisations that it is a legal requirement that the NHS has capital funds in place for any proposed changes, ahead of consultation on potential changes with the public?
2. If so, when?
Guidance on Planning, Assuring and Delivering Service Change for Patients, which was issued in 2018 and it is a legal requirement for CCGs to have due regard to the guidance, this includes section 7.3
There is a detailed process for scrutinising the Pre-consultation business cases (PCBC).
3. What is the legal basis for this, since it appears to contravene the first Gunning Principle that establishes that consultation should occur when proposals are at a formative stage (i.e. there is no firm plan in place)?
NHS commissioners and providers have duties in relation to public involvement and consultation, and local authority consultation. They should comply with these duties when planning and delivering service change.
Given that is seems to contravene the first Gunning Principle, how it is even lawful for NHS England to tell Lincolnshire NHS organisations to delay consultation until the decisions have been made and capital funding is in place?
Please see response to Q3.
4. Cllr Carl Macey has told me that NHS England has based this requirement on section 7.3 of NHS England’s guidance [Planning, Assuring and Delivering Service Change for Patients]. Is this correct?
Yes, this is correct. Here is a link to the guidance. https://www.england.nhs.uk/wp- content/uploads/2018/03/planning-assuring-delivering-service-change-v6-1.pdf
5. If so, please explain how NHS England has interpreted section 7.3 to mean there is a legal requirement that the NHS has capital funds in place for any proposed changes, ahead of consultation on potential changes with the public.
Please refer to responses to Questions 1, 2 and 3
6. What has changed since the 2016 Calderdale and Greater Huddersfield consultation on proposals to reconfigure Calderdale and Huddersfield NHS Foundation Trust hospital services? The consultation took place more than two years before the Department of Health and Social Care made a commitment of capital funding. In the case of the Calderdale and Greater Huddersfield consultation with the public and the Joint Health Scrutiny Committee, “explicit support” meant that NHS Improvement came to the Calderdale and Kirklees Joint Health Scrutiny Committee and said, they approved the proposed use of capital funding but there’s a competitive process for bidding for capital funding so they couldn’t say if the hospital trust would get the funding when they applied for it.
The 2016 Calderdale and Greater Huddersfield consultation was completed using the 2015 guidance. The guidance was then updated in 2018 to include the requirement to identify a source of capital prior to public consultation.
Comment on FOI response (17.5.21)
The FOI response doesn’t clarify Cllr Carl Macey’s question about “whether the guidance is statutory (a ‘legal’ requirement)”. All it says is,
“it is a legal requirement for CCGs to have due regard to the guidance”.
Having due regard doesn’t sound much like being legally required to follow.
I suggest the Lincolnshire Health Scrutiny Committee asks Lincolnshire County Council’s legal officer/s for their informed opinion about whether the guidance is statutory.