Patients’ legal challenges to changes to the NHS

A briefing from public law firm Leigh Day & Co

1. Before NHS bodies can make decisions affecting/varying the provision of health services they must:

  • consult the Overview and Scrutiny Committee of the Local Authority (Reg 4 and 4A Local Authority (Overview & Scrutiny Committees Health Scrutiny Functions) Regulations 2002) and

  • involve or consult service users and potential service users (section 242 NHS Act 2006)


2. Consultation with Overview & Scrutiny Committees (OSCs)

OSCs may review and scrutinise any matter relating to the planning, provision and operation of health services in the area of its local authority.

Non-Foundation Trusts

  • NHS Trusts must consult OSCs when they are considering a proposal for a substantial development of the local health service or a substantial variation of local provision. Substantial is not defined.

  • This consultation must take place while the proposals are still in a formative stage, to provide an opportunity for representations to be made & for them to be taken into account before a final decision is reached.

  • The only circumstances in which such consultation is not required is where the decision has to be taken without time for consultation ‘because of a risk to safety or welfare of patients or staff’ – importantly, not for financial reasons.

  • Where it is dissatisfied, the OSC has powers to request further information from a NHS body, to require an officer from the body to attend its meeting, to submit a report to the Secretary of State asking for further consultation to be ordered or to request that the Secretary of State overules the decision of the local NHS body.

Foundation Trusts

  • Foundation Trusts must consult OSCs when they have under consideration a proposal to make an application to Monitor to vary its authorisation terms which would result in a substantial variation to the goods or services provided.

  • No exemptions apply to these Trusts regarding consultation.

  • Where the OSC is dissatisfied with the consultation undertaken or do not believe the proposed application is in the interests of the local health service, it can submit a report to Monitor who can order further consultation. However, Monitor cannot overule the decision of the Foundation Trust as the Secretary of State can above.


3. Public involvement and consultation

  • All NHS bodies must involve or consult health service users (or potential users) either directly or through representatives in the planning of service provision, development/consideration of proposals to change service provision, decision making regarding the operation of those services.

  • Dept of Health Guidance (Real Involvement) states that:

Users must be involved not only in the consideration of proposals to change services, but also in the development of any proposal that will change the manner in which a health service is provided or the range of services offered….

Commissioners act on behalf of the public and patients…In order to make commissioning decisions that reflect the needs, priorities and aspirations of the local population, world class commissioners will engage with the public, and actively seek the views of patients, carers and the wider community. This new relationship with the public is long term, inclusive and enduring, and has been forged through a sustained effort and commitment on the part of commissioners. Decisions are made with a strong mandate from the local population and other partners.

Good involvement practice happens early and continues throughout the process, is inclusive, is informed, is fit for purpose, is transparent, is influential – it makes a difference, is reciprocal – includes feedback and is proportionate to the issue.”


4. What to do if they decide to make major changes without consulting?

  • Find patients affected by the service changes who would be willing to take legal action. If they are in receipt of any means tested social security benefits such as income support, pension guarantee credit, family credit, housing benefit or council tax benefit they are likely to be eligible for Legal Aid (now called Public Funding).

  • Collect all of the available documentation available from the relevant NHS bodies (reports, public consultation documents, press releases, press cuttings, correspondence etc).

  • Obtain legal advice/help to write a letter before claim to the relevant NHS bodies reminding them of their duties to consult before making changes to health services, threatening judicial review if they do not agree to reverse the decision. Our contact details are below.

  • Do not delay! Cases must be brought promptly (within weeks of the decision being made).

  • Once a lawyer’s letter has been received in cases where no real consultation has been carried out the decisions are usually put on hold pending consultation. If not, commencing legal proceedings will need to be considered immediately.


5. What is involved in bringing a judicial review?

  • The case will be heard in the High Court in London (or one of the regional Administrative Courts).

  • There is no oral evidence so the Claimant does not have to go to court. He or she can play as large or small a part as he or she wants to.

  • If the implementation of the decision is imminent proceedings can move very quickly, suspending a decision in a matter of days or a few weeks. Otherwise it can take up to a year.


6. Carry on campaigning!

  • A judicial review about the lack of consultation will only delay the implementation of a decision. To prevent it the political argument needs to be won. You have to make it too difficult politically for the NHS body to confirm their proposed changes.


Richard Stein and Rosa Curling

Leigh Day & Co Solicitors




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