In recent weeks, all focus on the NHS has rightly shifted to questions around the resources available to prepare for and fight the coronavirus outbreak. However, the work of the NHS in all other areas continues, and service users, providers and commissioners are still considering proposals for change and innovation. Here we focus on NHS reconfiguration and how changed priorities, lockdowns and social distancing may impact current reconfiguration projects.
Consultation and patient and public involvement
One key issue is how the countrywide lockdown, self isolation and social distancing will affect existing patient and public involvement and in particular consultation exercises. There is no prospect of carrying out face to face involvement exercises such as public meetings and there are significant logistical difficulties in ensuring that all service users are reached online. It is unrealistic to expect commissioners immediately to adapt to new methods of involvement, especially where online technology may be required which will be unfamiliar to many people. Hard to reach groups may seem harder to reach when traditional methods of involvement are no longer possible.
To assess what can be done, it is worth reminding ourselves of the nature of the obligations on NHS commissioners to involve and consult with service users. Section 14Z2 NHS Act 2006 requires public involvement in CCG decision making. Patient and public involvement can take many forms, including but not limited to full consultation. It is also key to discharging commissioners’ Equality Act duties, in particular around evidence gathering to discharge the public sector equality duty.
Any consultation must be fair but it does not need to be perfect (Keep the Horton General v Oxfordshire CCG  EWCA Civ 646). This may well become a mantra of commissioners in the coming months. What is sufficient will be judged on the basis of all the surrounding circumstances.
When commencing a new involvement exercise (or completing an extant one), CCGs are going to have to think creatively about how to ensure the public are sufficiently involved. It is very likely that when life returns to some version of normal, challenges will be made to decisions taken over the next few weeks or months. CCGs will be called on to justify why involvement exercises were cut short and expectations of involvement and consultation were not met. As ever, good record keeping will be crucial.
However, moving online may not necessarily spell disaster for reconfiguration proposals. Engagement and consultation were already modernising before coronavirus. Now in place of Town Hall public meetings and surveys at supermarkets, we may well see an increased use of online videoconferencing platforms/live streams to broadcast information to service users, mass text or whatsapp messages and other innovative ways of engaging with the public. These will take some time to roll out. Careful thought will need to be given to how to contact hard-to-reach groups, but it is not impossible that increased use of online platforms may make it easier for those groups to engage and respond.
The coronavirus pandemic has already given rise to an urgent need to procure vital equipment. The Government has produced new guidance to NHS bodies (among others) on how to comply with procurement rules during this time. The guidance takes the form of two Procurement Policy Notes (PPNs) issued by the Cabinet Office last week.
PPN 01/20 deals with mechanisms for urgent procurement by central and local government, education institutions, NHS bodies and other contracting authorities. It addresses: (1) direct awards; (2) call-offs; (3) standard procedures with accelerated timescales; and (4) extensions or modifications of existing contracts. These routes are all provided for in the Public Contracts Regulations 2015, and some NHS bodies will have had recourse to them in the past. The PPN emphasises that the provisions permitting direct awards in the case of urgency must be limited to what is “absolutely necessary”. It is important that decisions to use the various mechanisms in the PCRs are clearly reasoned and well documented.
PPN 02/20 concerns special measures that local authorities should take to support their usual service providers, including waivers, variations, extensions and price adjustments. It also encourages normal and prompt payment, even if service delivery is disrupted or temporarily suspended. As a condition, suppliers are expected to act on an ‘open book’ basis, provide cost information and pay employees and sub-contractors. Local authorities are also encouraged to provide relief against contract terms, rather than accepting force majeure or frustration claims.
Innovation and the future
At some point, the NHS will return to some version of business as usual. Before coronavirus, the NHS was already looking to innovate in the way that services are provided. New models of care were being piloted across the country. What lessons will the wider NHS learn from this episode?
The expectations of service users are also likely to change. In some ways, service provision has become more nimble. Suddenly the norm for GPs is to offer consultations online and advice over the phone, where before there was reluctance. In some ways, this has improved access to primary care and speeded up change in this sector. Patients may well prefer this and not want to return to old models of care. This is an opportunity for providers who offer technological solutions.
Similarly, the NHS has demonstrated that it is rapidly able to scale up capacity to respond to a crisis. This is in the context of years of hospital and service closures and reduction in bed numbers. Will the NHS seek to maintain some spare capacity in the event of future epidemics? Is this even practical? Hitherto, the NHS Bed Test applied to reconfiguration proposals sought to ensure that closure of acute beds was mitigated by increased access within the community or a more efficient way of utilising the beds that would remain open. In a world where access to more acute beds may be needed at very short notice, will this test be revised? Will it become harder for CCGs to close acute beds in the future?
The reality is that any service reconfiguration that can be delayed at this time will be delayed. There are existing mechanisms in the legal framework to enable commissioners to pause their plans for reconfiguration or to meet urgent needs while all focus is on ensuring the NHS has the capacity to respond to this epidemic. In these changed times, commissioners will want to ensure that they are not storing up litigation problems for the future. A focus on the key legal principles is important, as is ensuring that decisions taken are documented and explained to service users. However, it is not all doom and gloom. The response to the crisis may well provide new and innovative ways of providing services that were unthinkable a few months ago.