If you are a councillor on a health overview and scrutiny committee, or an officer supporting one, you will want and need to know about the forthcoming introduction of the Secretary of State’s powers to intervene on NHS reconfigurations – including the abolition of the existing scrutiny “referral” power.
If you want to get up to speed, this material sets out more detail on the issues.
We now know that Government proposes that new powers will commence in January (yes, January 2024 – at most, three months away). We and the LGA have very strongly voiced our concerns about these timescales, particularly considering that previous Government has undertaken to consult on draft versions of guidance. That undertaking will still be honoured, we understand – just to very, very constrained timescales. As soon as we know any more – we hope that this will be in the next few days – we will write on this subject again.
Although the detail of new arrangements has yet to be confirmed I can tell you something about what to expect, and the overall “look” of the new arrangements – subject to ongoing work by Government. I hope that more can be shared with you, from more official sources, in the coming days. Government has agreed, though, that it’s important that we’re able to share at least something with you to raise awareness that this is happening.
We expect four official “things” from Government in the next couple of months:
- A new set of health scrutiny Regulations. These will be laid in early January (to come into force at the end of the month);
- Statutory guidance for NHS commissioners on the new arrangements, of which we have seen a draft;
- Statutory guidance for health scrutiny (which will, we understand, be more general in scope but on which we currently have no information);
- Statutory guidance for the Secretary of State themselves on the proper use of the power to intervene.
The process in brief
There will be a process to follow for substantial variations in future. There are some similarities with what we have now but a lot of differences.
The main feature is that intervention in a local reconfiguration will be a process with two stages – first the Secretary of State will determine whether or not they should call a reconfiguration in, and if they determine that they should, they then consider what form any direction or intervention might take. From the guidance it seems clear that once a reconfiguration has been “called in” the Secretary of State will, by definition, use their powers to intervene – this appears to be the case from the wording in the Act too. The only matter to determine is what that intervention will look like – basically, what the Secretary of State will direct. (He or she may direct, for example, that local commissioners’ plans should go ahead unamended).
The process will look like this:
- Commissioners must notify the Secretary of State when they consider that they are planning a reconfiguration that involves a substantial variation. We are assuming that definitions will stay the same in the new regime. The judgement about what to notify and when seems, at the moment, to lie in the hands of the NHS locally, and we are arguing that (as is the case now) the relevant HOSC(s) have a stake in this decision. We have raised with DHSC specific concerns about how challenges have emerged in the past around the “substantial” nature of changes, particularly in relation to the way that patient flows operate for joint scrutiny work;
- Requests can be made by *anyone* to the Secretary of State to use their powers. We’ve suggested that local requesters should be expected to engage with HOSCs / Local Healthwatch as a way of providing local co-ordination. We’re worried, here, that there is a risk that HOSCs will get embroiled in a flurry of unco-ordinated local requests to the Secretary of State – particularly as the guidance as currently drafted suggests that the Secretary of State may respond to requesters recommending that they go to the HOSC first, which all starts to feel a bit circular;
- The Secretary of State will then decide whether to “call in” a reconfiguration. To come to this judgement they will take evidence including whether local attempts at resolution have been exhausted. It has been made clear to us that this will be a high bar – Government see these powers as a long-stop;
- If the Secretary of State decides to call in a reconfiguration the law requires them to consult with HOSCs and Local Healthwatch on whether, and how, to use their power of intervention. We consider that there is quite a bit of overlap – in terms of evidence-gathering and consultation – with the first part of the process and have suggested some changes accordingly that better “centre” scrutiny’s role, and the role of Healthwatch, as advocates for and representatives of patients and the wider community;
- If the Secretary of State directs / intervenes commissioners to do something, we have asked that this notification be sent to the relevant HOSC(s) too (at the moment it isn’t clear).
There are some information management issues associated with the Secretary of State’s decision-making that we hope to resolve by ensuring that HOSCs have access to the full slate of data and evidence that the Secretary of State will use to make their decision.
Finally, we have asked that DHSC makes clearer in the guidance their expectations of the indicative timescales that will operate for SoS decision-making and consultation. We have noted that clearer, more consistent engagement with HOSCs at the start of the process, that is followed through, is likely to facilitate HOSCs being able to make slightly tighter timescales for turning around responses and evidence, although we note that given committee cycles that cannot always be guaranteed.
The IRP will continue to have a role in the process although in the current version of the guidance we have seen the exact nature of this isn’t clear. We expect there will be more detail in the guidance to the Secretary of State.
Transitional arrangements
You will be able to refer things to the Secretary of State using the existing rules right up until 30 January 2024, and they will be taken forward under those arrangements. But from 31 January the arrangements above will come into force for everything “new”. You should be aware that this may involve some uncertainty between you and NHS colleagues about what stage in the reconfiguration process you may have got to by January, if you are in an area where there is “live” work ongoing, or in prospect. If this describes your position please get in touch and we will try to funnel any issues to DHSC and NHSE.
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