We own the NHS, and have some choices.
- Challenge the system (The Government, which makes NHS policy)
- Challenge the people running the system (NHS England)
- Challenge the people arranging local services (CCGs, STPs)
- Use the system to challenge & change the system
OUR NHS has been altered in the last couple of decades in a number of ways – so we need to know how NHS decisions are made – what about – and who by!
In 1999 the responsibilities for their own NHS services were handed over to Scotland, Wales and Northern Ireland and they are allocated funds to manage their own NHS.
We are talking about the NHS in England here.
What is The System? The UK government’s laws and its Department of Health continue to set the NHS overall policy, and decide what the overall funding will be, for NHS services in England.
THE SYSTEM = UK GOVERNMENT NHS POLICY
Who are the People Running the System? In 2013 the responsibility for running the day-to-day NHS service delivery, in England, was given to a new organisation called NHS ENGLAND – which has to make sure the services we all need are available to us. They need to meet annual targets and to do all this using the money the UK government decides to give them.
THE PEOPLE RUNNING THE SYSTEM = NHS ENGLAND
Who are the People Arranging Local Services? Also, in 2013, a number of CLINICAL COMMISSIONING GROUPS (CCGs) were created across England and allocated money, that was paid to them by NHS England, to plan and buy local services for their local population, usually the area of a local authority, or Council.
This began the transfer of NHS decisions about services from a National level to a local level – as the CCGs are legally responsible for planning local NHS services.
THE PEOPLE ARRANGING LOCAL SERVICES = CCGs
Or is it really as simple as that?
In 2015 NHS England invited different areas across England to test out new ways of delivering NHS services. These are called VANGUARDS and are mainly made up of some NHS Trusts working together. NHS Trusts are responsible for providing NHS services, planned and paid for by the CCGs under a contract.
This introduces some words you really need to know about:
‘Commissioners’ = organisations that plan the services needed by the people who live in the area they cover, and ensure that these services are available – usually by paying for them. (CCGs and NHS England are commissioners)
‘Providers’ = organisations that provide the services people need, such as care and support services – usually planned, and paid for, by commissioners under a contract. (NHS Trusts and GP Practices are providers)
Having the Vanguards plan new ways of delivering services was a BIG change as the ‘future’ of services was now being planned locally – not Nationally anymore – and by providers, not commissioners – and not even the UK government, or Department of Health.
Was this NHS policy – was it NHS service planning – or was it NHS service delivery?
In 2016 – NHS England instructed CCGs to come together to plan NHS services for a larger local area, to deliver the STPs, building on the ‘new models of care’ developed by the Vanguards in their area.
STP originally stood for a Sustainability and Transformation Plan in which each collection of CCGs had to show how NHS services could be delivered more cheaply over the next few years, until 2021, to give a TOTAL saving of £22 billion across England.
It is claimed that the CCGs are still individually, legally responsible for the planning, services, and the decisions made by the STPs.
That’s because these partnerships of CCGs have no legal powers to make joint decisions about NHS services, only the individual CCGs can do that.
HOWEVER – it is becoming increasingly clear that decisions ARE going to be made by the STPs, and influenced by the Vanguards.
It looks like a mess.
THE PEOPLE ARRANGING OUR LOCAL SERVICES = CCGs + STPs (+Vanguards?)
I think we are meant to be – so we are less likely to know who to challenge – about bad decisions – and when things go wrong!
So – back to our choices.
REMEMBER – Commissioners MUST involve the public DIRECTLY in their plans and decisions about NHS services.
You need to know that CCGs each cover a population of around a quarter of a million, that the STPs each cover a population of well over a million people, and also to know that NHS England covers a population of around 55 million people.
See the Statutory Guidance (about the public involvement duty for commissioners) & our last blog post STPs must INVOLVE the public in their decisions – it’s the LAW
The law gives us legal rights from the legal duties that the commissioners have to meet.
If we know about our rights and their duties – in the law – we can challenge them in public at their Board meetings when these are ignored. We can also challenge them in other ways – such as formal complaints, Freedom of Information requests and, if all else fails, by taking them to court.
THEY NEED TO KNOW THAT WE KNOW – WHEN THEY ARE BREAKING THE LAW.
Here’s how it can work:
1. CHALLENGE THE SYSTEM (The Government which makes NHS policy)
- There’s a General Election – so make sure you use your vote to protect the NHS and the accountability to the public of any national policy decisions affecting OUR NHS.
- After the General Election – make sure your MP is accountable to you and your neighbours for any speeches, votes and committee contributions they make about matters that affect OUR NHS – and – that they protect and promote direct public involvement in all NHS decisions.
2. CHALLENGING THE PEOPLE RUNNING THE SYSTEM (NHS England)
The Board – each member of the NHS England Board takes responsibility for the policies and the statutory duties of NHS England – which includes public involvement in commissioning. It is possible to send public questions in to NHS England by email (see this page) before a Board meeting and a written response is promised. (But responses are not always sent.)
Individuals – senior officers and Board Members (see this page) – who often put blog posts on NHS England’s website which invite public comments.
- Why not post a comment on why they don’t involve us in decisions about our services?
- We can give you some suggestion about things to write if this is new to you.
Complaints – NHS England has a complaints system (see this page). There are the usual statements in the complaints policy about treating complaints seriously and in a timely manner. As a commissioner, NHS England has to involve us in their commissioning decisions for specialist services and for primary care.
- NHS England involves ‘us’, now, via selected representatives in a national public involvement process called the NHS Citizen Programme and run by its Patient and Public Participation Team.
- But this is all done ‘in secret’ and definitely doesn’t meet the new Statutory Guidance. (see many of our recent blog posts about national involvement).
Freedom of Information (FoI) requests – (see this page). Any FoI request needs to be clearly stated, and asking for short and very precise answers or there will be an excuse given that a response is not possible as the total cost of investigating an answer is over the statutory maximum cost limit.
This is a fairly new process to us but again if you’d like help please contact us.
3. CHALLENGING THE PEOPLE ARRANGING LOCAL SERVICES (CCGs & STPs)
This looks more difficult – as a Complaint and a Freedom of Information request both apply – but only to the individual CCGs.
It is still possible to ask public questions, and to attend CCG, and other NHS, Board meetings, which should meet in public and be advertised on their websites and in the local press.
- Get a small group together and go to a meeting to see how they’re run.
- Go again, so you can see what they do and they know you’re watching them!
- Then start asking questions – awkward questions.
Such as asking them to say EXACTLY how they will involve the public directly, and EXACTLY how they can be sure their chosen public representatives can TRULY represent all our views.
If their answers to such public questions at ANY of these meetings of CCGs are not clear – then ask the same question again at the next meeting. If it still isn’t answered – then ask it again at the next meeting – and if needed at the meeting after that ……..
4. USING THE SYSTEM TO CHALLENGE AND CHANGE THE SYSTEM
Public questions at Board meetings held in public
Above we describe our right to attend Board meetings, to ask public questions at most Board meetings, of most NHS Boards. You can attend every meeting and ask a question every time. Some people do this.
- The meetings are ‘in public’ – with no restriction on how many people can attend
- The agenda should state ‘Questions from the public’ – again no restrictions
- Every member of the public has an equal right to attend and to ask a question ………
- It could be that many people have similar questions about the same issues ……..
Complaints and Freedom Of Information (FoI) Requests
Again we describe above our right to make a complaint and to ask one or more Freedom of Information requests.
- Every member of the public has an equal right to complain and make an FoI request
- It could be that many people choose to complain, or to make an FoI request, about the same issues, it’s a good tactic
Legal challenges when commissioners ignore their legal duties and powers
We all have the right to challenge a decision made by a public body which we feel was not made according to the law by applying to make a claim for a Judicial Review of the ‘lawfulness’ of their decision.
Public Bodies act within the duties and powers given to them in Public Law.
NHS commissioners, the CCGs and NHS England, are ‘public bodies‘ and they were both given their duties and powers in the Health & Social Care Act 2012, which is ‘public law‘.
So this means we all have a right to challenge, in the high court, any ‘illegal decision’ by commissioners to ignore their legal duty for public involvement in commissioning and to exclude us from any one of their commissioning decisions.
(The lawyers will be only too happy to take on such cases as a number of recent changes to the legal system have affected their business, and win or lose they will get paid.)
To apply to put in a claim for a Judicial Review you, or your group, has to:
- Apply within 3 months of the decision that is being challenged was made – some challenges have shorter deadlines
- Make it on a point of law about legal duties required or legal powers used
- Have tried other ‘remedies’ first, only use the High Court as a ‘last resort‘
- Pay an ‘application’ fee and be able to cover all the costs – it is not cheap
- Be prepared to pay the public body’s costs if the judge rules against you
- Expect to use a lawyer as the law is very complex – not wasting court time
Once an application to take a claim is accepted a Judicial Review hearing is arranged.
A judge then reviews the way the decision was made, but not what was decided.
In other words if the judge finds the decision was made unlawfully then they will tell the public body to do their decision-making again – and to do it properly (within the law).
But the judge will not tell them to make a different decision.
HOWEVER: An application for a Judicial Review is a serious move that has consequences for ALL of us – and should not be taken lightly – or rushed into on a whim:
- Most Judicial Reviews are unsuccessful – but you still pay the fee and costs
- So if you ‘crowdfund’ and lose – others may struggle to get public support
- It must have strong evidence to support the case – able to ‘stand up to scrutiny’
- A judge’s ruling becomes ‘case law’ = ‘judicial precedent’ in English Law
- That means the judge’s ruling becomes law = latest interpretation of the law
- Future cases will be judged by the latest judge’s ruling on a similar case
Historically the NHS establishment has ignored its legal obligations about involving the public. But this is partly because they don’t keep up with the latest law and any statutory guidance that explains the law.
We, at National NHS Public Voice, are finding that CCGs, and even NHS England, are unaware of the different wording in the sections of the Act dealing with the public involvement duty that is in the Health & Social Care Act 2012 when compared with the earlier 2006 Act.
There are two key differences:
- Who to involve:
- The 2006 Act says ‘users of those[health] services‘ – which implies patients only
- The 2012 Act says ‘individuals to whom services are being or may be provided‘ – which implies everyone (all of us)
- How to involve:
- The 2006 Act says ‘whether directly or through representatives‘
- The 2012 Act does NOT include this wording
Most CCGs and NHS England still use selected representatives that do NOT represent the public’s views, and they concentrate on patients, not the public. These approaches are NOT within the current (2012) law.
Commissioners, campaigners, and their legal representatives – need to be aware of these differences – and the differences between the 2017 Statutory Guidance which is much clearer and stronger than the 2013 version (which is no longer valid).
Some campaigners are already taking legal action
We can only hope that they are fully up to date with all relevant detail in the law and the relevant statutory guidance.
Also that they have carefully considered any implications their case may have for all future applications for Judicial Review around commissioning decisions that other campaigners may wish to make.
Time will tell!
What do YOU think?
What success have YOU had with challenging the CCGs?
When do you think the courts should be used?