Some of you may have read National NHS Public Voice’s recent blog post, on this site, (see Shhh! it’s a secret……). about the draft of the Statutory Guidance that the NHS England Participation Team were developing earlier this year – with the chosen few – and in secret!
The new Statutory Guidance that’s now been published (on 6th April 2017) includes some of the text from their draft – but it is not nearly so vague. It explains very clearly just exactly what the legal duty for public involvement means, and what it includes. This gives us a much stronger tool to challenge when commissioners break the law by denying the public any involvement in commissioning decisions – as the law requires.
The NHS also published a Business Plan – called Next Steps on the Five Year Forward View on 31st March 2017. And this says on P 35:
“As STPs move from proposals to more concrete plans, we expect them to involve local people in what these plans are and how they will be implemented.”
The NHS also published (31st March 2017) an annex to their Business Plan – called NHS England Funding and Resource 2017-19: supporting ‘Next Steps for the NHS Five Year Forward View’ and this says on P 4:
“All the work of NHS England is focused on delivering better health services for our patients and the public. It’s essential that this work is based on a good understanding of what is important to them, and we work hard to involve patients and the public directly in the development of services and changes through encouraging and supporting active participation in improving care and services and promoting openness and transparency.”
Please note the words ‘involve patients and the public directly in the development of services and changes‘ and ‘openness and transparency‘!
We will share three things with you in this post – about public involvement in commissioning:
- What the law says
- What the new statutory guidance says
- How commissioners have ignored the law – for some time
WARNING – This is a LONG post!
Because we’ve included extracts from the Statutory Guidance for your information. So we’ve made the full post, and some of the sections, available as PDFs. (listed at the end of the post)
But first – just to be clear – there’s a need to briefly explain some of the things we will be talking about – as it will all be new to some of you.
Here we go:
THE STPs – are the ‘Local Plans to Improve Health and Care’:
- STP stands for ‘Sustainability & Transformation Plans’
- 44 STP areas now exist across England
- STPs intend to deliver services more cheaply (the sustainability bit) as there’s not enough money to pay for our services
- STPs intend to deliver our services differently (the transformation bit) so they can deliver the cheaper services safely
COMMISSIONING – is deciding how to use NHS funding to plan and buy our health and care services. ‘Commissioners’ are the parts of the NHS that make the arrangements for commissioning, (planning and buying) our services. There are two NHS commissioners:
- NHS England – is responsible for ALL NHS services in England, and for commissioning (planning and buying) ‘specialist’ services (e.g. for rare conditions), and primary care services (opticians, pharmacies, dentists and some GPs)
- CCGs, or Clinical Commissioning Groups – 207 CCGs are responsible for commissioning (planning and buying) local health and care services for people in local authority areas. The 44 STPs are planned by a number of CCGs working together to decide about the delivery of health and care services for a larger population across a number of local authority areas.
A STATUTORY GUIDANCE explains the legal requirements in an Act of Parliament:
The new Statutory Guidance, published on 6th April 2017, is about ‘patient and public participation in commissioning’. (‘patient & public participation’ = public involvement – in ‘NHS England speak’).
This new statutory guidance is for NHS England and all CCGs and explains the importance of their legal duty to involve the public in commissioning that was included in the Health & Social Care Act 2012.
It replaces the rather vague statutory guidance that was published in 2013 and actually strengthens our legal right to a public voice in NHS decision-making. It is now very clear to commissioners just what their ‘legal duty for public involvement’ actually means and exactly what the law requires them to do. Words like ‘directly‘ and ‘in a meaningful way’ are used to describe how people should be involved in commissioning decisions about services.
There is an on-line version, for quick reference, and also a word version, that can be printed out, with numbered items so they are easier to refer to (for possible challenges).
What the LAW says –
(about direct public involvement in commissioning)
The Legal Duty for public involvement is in the Health and Social Care Act 2012. It requires NHS England and CCGs to “involve individuals, to whom services are being or may be provided”, in their commissioning arrangements. The public involvement duties of each of these commissioning organisations are described in separate sections of the Act, but the wording is very similar.
There are additional duties for the CCGs saying they ‘must have regard‘ to ‘any guidance‘ that the Board (now called NHS England) ‘may publish‘, and CCGs must include their public involvement plans, and the principles these are based on, in their constitution.
NHS England’s Legal Duty for Public Involvement is in Section 23. 13Q of the ‘Health and Social Care Act 2012, and is one of a number of other sections about the general (legal) duties of NHS England. (The Act refers to the ‘NHS Commissioning Board’ but as this is the former name of NHS England, the legal duties all now apply to NHS England.)
Section 23. 13Q says:
CCGs’ Legal Duty for Public Involvement is in Section 26. 14Z2 of the ‘Health and Social Care Act 2012, and is also one of a number of other sections about the general (legal) duties of CCGs. Section 26 14Z2 subsection (3) requires each CCG’s constitution to include a description of their arrangements to involve the public in their commissioning, and a statement of the principles they will follow in doing so. Section 26. 14Z2 subsection (5) requires that CCGs ‘must have regard to any guidance published’ by what is now NHS England (such as this newly published Statutory Guidance.)
Section 26. 14Z2 says:
Other additional and relevant Legal Duties the NHS Commissioners have are in different sections of the Act and give commissioners legal duties that are directly relevant to public involvement. These are reporting requirements about planning and meeting their public duty, with the CCGs having an additional legal duty to consult the public on their commissioning plans.
The commissioners also have more legal duties in the Act – about service quality, reducing inequalities in access to services, service outcomes (or results) and the patients’ experience of services. These are all important to people needing services and have a connection to public involvement in that, it could be argued, they demonstrate the importance of public involvement in providing effective services.
The relevant sections in the Act and the wording of these other legal duties are all listed in a document available at – Other Legal Duties of Commissioners.
What the NEW Statutory Guidance says –
(about direct public involvement in commissioning)
The new statutory guidance describes exactly which commissioning activity should involve the public, lists TEN ACTIONS that clearly say what commissioners should be doing to involve us, and gives links to other relevant guides and policies on the NHS England website.
It also lists Ten Principles of participation gathered from ‘ a review of research, best practice reports and the views of stakeholders’. But doesn’t say which research and reports they were based on or which stakeholders were asked. We don’t disagree with them, just think there are much stronger involvement principles that could have been listed. See P 11 of the word version.
So – back to the 10 ACTIONS that clearly say what commissioners should do:
“This guidance sets out 10 key actions for CCGs and NHS England on how to embed involvement in their work. They should:
- Involve the public in governance
- Explain public involvement in commissioning plans/business plan
- Demonstrate public involvement in annual reports
- Promote and publicise public involvement
- Assess, plan and take action to involve
- Feed back and evaluate
- Implement assurance and improvement systems
- Advance equalities and reduce health inequalities
- Provide support for effective involvement
- Hold providers to account.”
- Key Actions 1. to 8. are requirements specified in LAW and
- Key Actions 9. & 10. are implied within other legal requirements
Briefly Commissioners MUST carry out the following actions:
- Action 1. – to promote the NHS Constitution (which pledges our right to be involved) & CCGs must have a Lay Board member specifically responsibile for Public Involvement
- Action 2. – to explain in their annual Plans how they will involve the public in commissioning decisions
- Action 3. – to explain in their Annual Report how they met their duty to involve the public in commissioning, & CCGs must present their Annual Report directly to the public
- Action 4. – to make sure people know that they can be involved, and how they can be involved, in decisions about services
- Action 5. – THIS IS KEY AND WE GIVE MORE DETAIL BELOW
- Action 6. – to record – how they give feedback, and any resulting changes – and to evaluate their public involvement activity
- Action 7. – to monitor and evaluate their public involvement systems and make sure their performance in public involvement continuously improves
- Action 8. – to have inclusive public involvement programmes that enable people to be equally and fairly involved without discrimination
- Action 9. – to provide support to both enable involvement and remove barriers to being involved
- Action 10. – to be sure providers meet NHS Standard Contract service condition 12 and in particular 12.3, 12.4 and 12.5 which are about inclusive public involvement
ACTION 5. – explaining this action takes up nearly a third of the whole Statutory Guidance
This shows how the content of Action 5 is considered very important and needed to be explained in detail – which it was in:
- 14 pages (Ps 15-28) out of the 50 pages word version of the Statutory Guidance and
- 19 pages (Ps 17-35) out of the 61 pages on-line version
It clearly explains the assessment, planning and action that needs to be taken to involve the public in commissioning in a way that meets the legal duty to do so.
8.1 and on Ps 15-18 (word version), explains how to recognise which activities are commissioning functions where the legal duty to involve the public applies, giving examples for them. (These include things we are often told are not our business.)
It says clearly, on P16 that:
“CCGs and NHS England are required to always have arrangements in place to involve the public in the planning of commissioning arrangements, regardless of the impact these plans would have on services if they were implemented.”
The introductory list includes the following as commissioning activities:
“Changes to commissioning arrangements” such as:
- “plans to reconfigure or transform services or improve health.
- “changes to services, new models of care, new service specifications, local improvement schemes, etc.”
- “Reconfigurations involving movement of services from one provider or location to another.”
“Procurement” such as “Considering or developing proposed models, configurations or specifications for a service and “Commencing a procurement process”
“Contracts” such as “Entering into a contract with a provider” or “Varying a contract, other than a variation required by law. “Serving a notice to terminate a contract with a provider” or “Receiving a notice to terminate from a provider”
“Overview and scrutiny referral” “Any instance in which a referral has been made to the local overview and scrutiny committee.”
“Equality” such as “An equality impact analysis may indicate the need for engagement, for example a lack of evidence relating to certain groups.”
Planning and taking action:
8.2 Ps 18-19 (word version) starts to explain how to plan and take action to involve the public in commissioning. It includes the importance of looking at ‘insight’, such as information they already have from surveys, complaints etc. and any previous public involvement exercises around the same or similar service change.
8.3 Ps 19-20 (word version) looks at who should be involved in the commissioning arrangements and starts by saying, “Staff should involve patients and those who may use services in future. This includes carers and families, where relevant.”
And on P 20 (word version) it says a lot about involving the public ‘via representatives’ saying:
” Ideally, CCGs and NHS Egland should engage directly with the population affected by the commissioning activity, but in some circumstances, some aspects of public involvement can take place via representatives.” (our emphasis)
“Where involvement takes place via representatives, staff should seek assurance that the representatives offer a fair reflection of the views of others. Engagement through representatives should only be used where directly engaging with service users is not practicable or proportionate. It should complement – not substitute – opportunities for direct engagement.” (again our emphasis – see the quote we show below from P20)
8.4 Ps 20-22 (word version) talks about how people should be involved saying that when “public involvement is required, staff will need to make their best possible judgement on what is a ‘fair and proportionate’ approach to the circumstances”.
8.4.1 Ps 20-21 (word version) describes the Gunning Principles as a recognised way of demonstrating ‘fairness‘ giving useful information – that could be used to challenge ‘unfair’ consultations. They apply to a formal consultation process, though, which is only one type of public involvement.
8.4.2 Ps 21-22 (word version) describes how the commissioners should demonstrate ‘proportionate‘ activity and implies that the involvement activity should be in proportion to “the extent of changes and number of people affected“.
It says staff “need to consider their duty to involve the public alongside their duty to act effectively, efficiently and economically”. Also that staff “will need to consider the impact of proposals on people who may be affected” and “should also consider the potential impact on other services which they may not commission, and issues for patients beyond the clinical services themselves, such as accessibility, transport links and ambulance availability”
It then adds – “Location, access and demographic issues need to be taken into account, for example, considering how a population in a rural area or how children and young people may be particularly affected by a change to services.”
8.5 P 23 (word version) talks about working with the VCSE or voluntary, community and social enterprise sector as a source of expertise in reaching disadvantaged communities. But it says NOTHING about VCSE staff speaking FOR patients and the public which is what’s been happening lately.
8.6 P 24 (word version) talks about working with Healthwatch in their statutory role to gather the views of patients and the public about health and care services. However as the experience people have of the effectiveness of their local Healthwatch varies enormously we will comment no further.
8.7 Ps 25-27 (word version) looks at when involvement should take place and says that “involvement should never be left to a time when the views obtained could not make a meaningful difference to the approach being taken. Involvement should not typically be a standalone exercise such as a formal consultation. It will generally be part of an ongoing dialogue or take place in stages.”
It suggests when the public should be involved such as:
“…… for example in:
- designing the approach to engagement
- developing options
- refining options
- formal consultation on a limited range of options
- and being informed about the outcome of the consultation and the decision taken.”
It also says that “Staff should continually assess the effectiveness of public involvement throughout the commissioning process” and gives examples where further work is needed – such as feedback that’s not been fully considered, repeated concerns and very few people involved.
8.8 Ps 27/28 (word version) looks at decisions needing to be taken urgently and says this is sometimes the case and it “may be necessary to consider the duty to involve the public alongside the public interest in maintaining continuity of care and protecting the health, safety or welfare of patients or staff.”
However it goes on to say:
“It will only be reasonable to justify carrying out a limited (or no) public involvement exercise on grounds of urgency when the lack of time was genuinely caused by an urgent development or where there is a genuine risk to the health, safety or welfare of patients or staff. It does not permit CCGs and NHS England to leave public involvement until the last moment without enough time to carry out a fair and proportionate exercise, when the public could and should have been involved earlier or to a greater extent.”
8.9 P 28 (word version) looks at managing the outputs of public involvement, such as recording who was involved, how, when and where – and what was said. It describes the conflicting opinions that are likely to be given – such as parents and young people, and patients and their carers.
The guidance says that staff “need to be able to analyse these differences of opinion and to identify the most appropriate course of action, considering factors such as the representativeness of views expressed.”
However we (National NHS Public Voice) are concerned that this implies that staff should take one opinion as more valid than the other, rather than ‘taking account of’ both in the service planning and delivery, (which would be recognised as basic involvement best practice.)
Local variation in commissioning arrangements
In the summary on P5 of the Statutory Guidance it says:
“The guidance also explores some of the complexities of commissioning in a changing healthcare landscape, in relation to co-commissioning, devolution and joint arrangements, including accountable care systems (ACSs).”
On Ps 37 – 41 (word version) it does explore these issues, but using jargon.
We (National NHS Public Voice) are concerned that, despite these being new situations most people don’t understand, many people don’t even know about them, as there is no public information about them being published, or any attempt to explain the ‘complexities’.
There are NO leaflets or posters – explaining these – at all!
We also fail to see why the pages ‘exploring’ these new ‘complexities of commissioning’ describe it all in a more ‘management style’ of language and layout that appears to repeat the technical documents used in the NHS higher management circles.
How can the public be involved in local variations in NHS commissioning if the information explaining the ‘complexity‘ uses inaccessible language?
In other words – these pages (37-41, word version) are not helpful.
People, and front line staff, are trying to understand what all the NHS changes being talked about actually are, how they will be affected by them, and how will they be involved in deciding which local changes are to be made.
We RECOMMEND that:
Plain English information is produced for the public and for front line staff.
This needs to clearly explain the new terms, the new NHS partnerships, and any implications for accountability, for services and for public involvement in commissioning decisions.
- What are local variations and existing flexibilities?
- What is meant by co-commissioning, delegated commissioning, devolved commissioning and joint commissioning – and how are they different?
- What are all the new local organisations or partnerships called?
- Which organisations now make decisions?
- Which one(s) are responsible for those decisions?
- Which one(s) are responsible for the money?
- Which one(s) are responsible when things go wrong?
- How do these new local variations/flexibilities ensure public involvement in commissioning arrangements and commissioning activity?
- AS LAID OUT IN THIS STATUTORY GUIDANCE (for public involvement in commissioning)
How commissioners ignored the law –
(about direct public involvement in commissioning)
CCGs are supposed to involve the public in their local work, and the CCGs that work together to develop STPs are supposed to involve the public in them too.
The public have had a legal right to be involved in decisions about health and care services for over ten years now, and this right was strengthened by the 2012 Act. Our right to be involve has been respected in the past. BUT now it is being ignored.
- There has been little direct public involvement in local service commissioning.
- There has been no direct public involvement in developing the STPs – at all!
Some people may disagree and say – ‘OH YES THERE HAS!‘ But they’ll be describing some local commissioning, or STP, events and meetings where a member of the public was asked to go – to ‘represent the public interest’.
- They’ll have been either invited, or selected, by the NHS to ‘represent’ us – the public
- There’ll have been no expectation that they’d talk to us to find out what we want them to say ‘on our behalf’
- The meetings or events they attend are not reported publically
- So we don’t get to know what they actually said ‘on our behalf’
- And don’t find out what was talked about at the meeting, or event, they attended
DIRECT means ‘without any person, thing or event intervening’
REPRESENT means ‘be a substitute or deputy for’ or ‘be entitled to act or speak for’
(Oxford English Dictionary)
The public, as individuals, should be able to be involved ‘DIRECTLY’ in NHS decisions. But we have only been involved indirectly through unaccountable representatives who don’t report anything back to us.
The public should be directly involved in ALL the NHS commisioning arrangements. But commissioners are not involving us in any decisions about proposals for changing their commissioning arrangements, nor in procurement, or contracts, or plans for restructuring of services including their relocation. (see Action 5 – introduction & 8.1).
The public should know when commissioning changes are being planned, and any planned public involvement in this should be widely publicised. Any involvement in commissioning is usually by invitation only, only a few people are told about it. The public are neither told about, nor involved in, the discussions before a service change is considered by commissioners to be necessary.
The public should be consulted at the planning stage, not after a change is agreed as necessary. Commissioners mostly think they only have to consult us after they have decided to make changes to the availability of services, by closing or relocing a service. They don’t ask us what we think could make the service(s) work better, just what we think about the decision they are taking as they believe it is necessary, on our behalf.
Public involvement should make it possible for the public to influence any decisions. Commissioners imply we can influence or alter their decision, which is clearly not their intention as they present ‘a case for change’ and a recommended option that they say is necessary. This shows the consultation is a ‘tick box’ and endorsement exercise regardless of the responses or response rate.
The public have no forum to elect their representatives, to discuss service issues together and to have a collective voice. The adult public are not treated as fairly as the youth forum, medical committees, or other ‘stakeholders’ who have such collective involvement and representative arrangements made available to them.
The public should be able to choose their own representatives. But our representatives are neither chosen by us nor are they accountable to us. There are no arrangements or support systems provided to enable people who represent us to find out what our views are, or to report back to us.
We (National NHS Public Voice) RECOMMEND that – anyone who ‘REPRESENTS the public’ should:
- know the views of the public
- report back to the public on what was talked about
- report back to the public what they said ‘on our behalf’
- and be clear and honest, in their role
In this last point, by ‘being clear and honest in their role’ we mean that when they speak at a meeting or event, as a public representative, they should be clear and honest about:
- when they are giving their own personal opinion
- when they are reporting the collective views of the public
- and when they will need extra time to ask the public what their views are about a particular subject, and to bring these views back to a future meeting/event
We’ve said, many times, that our unaccountable and selected representatives, without a regular dialogue with the wider public, can only represent their own views based on their own experience and knowledge.
Our members have also said this many times in public in front of NHS England staff and Directors at event ‘Question and Answer’ sessions, and directly to them in conversation.
Have a look at this quote shown on P24 of the Online version of the Statutory Guidance:
actually representing the
community – or just their
own personal views?”
NHS England patient and
public voice partner
- Do some NHS Patient & Public Voice Partners agree with us?
- OR – Has NHS England actually been listening to us!
Our ‘model of involvement’ (National NHS Public Voice’s) is more inclusive and representative than the ‘model of involvement’ used by NHS England and by most CCGs as this chart shows:
We, at National NHS Public Voice, have also said many times that:
NHS England’s new public involvement arrangements are excluding individual members of the public.
We have shown why we think this in some of our former posts, such as:
These older posts were written in December 2016 and January 2017. BUT – there is still NO information for the general public on:
- What the new NHS Citizen Programme offers for direct public involvement, or
- Who the new NHS Citizen Board members are, and
- What the new Board are deciding ‘ on behalf’ of the public about
- How we will be involved in NHS England’s commissioning decisions.
National NHS Public Voice (N-NHS-PV) says that:
NHS ENGLAND, and all the CCGs that are arranging STPs, should OBEY THE LAW
Documents for downloading: