The publication of new guidance signals the biggest change in 20 years for NHS service reconfiguration projects in England.

It’s fair to say that the legal and regulatory processes around health service change in England are well-established. Over the last two decades, those processes have evolved as policy, legislation and case law has evolved. We are all very familiar with the requirements and how it all works. We’re familiar with the roles of local authority health scrutiny committees, the Independent Reconfiguration Panel, and the Secretary of State for Health and Social Care.

These are all set to change on 31st January.

The Department of Health and Social Care has made regulations and published guidance that brings into force new powers for English ministers to intervene in NHS reconfiguration programmes. And it has updated guidance on local authority health scrutiny functions. 

There are some big stories here. 

• The Secretary of State’s new power to intervene in service change programmes. That power is extensive, giving ministers powers to call in proposals for service change and make any decision an ICB can make. That could include unmaking a decision an ICB has already made.
• Local authorities will lose their long-held power to refer contested service reconfiguration to the Secretary of State for review.
• Anyone will be able to petition the Secretary of State to call in any service change proposal.
• The Independent Reconfiguration Panel (the body that reviews contested proposals on behalf of the Secretary of State) will have an expanded role.

What does this mean for our members out there working on NHS service reconfiguration in England?

Naturally, new rules mean new things to do.

Responsible officers will have to notify the Secretary of State when they have proposals for substantial changes to services under consideration. That’s the same as the duty to notify affected local authorities, and is expected to work in tandem with that. The department has produced a helpful form to be used for those notifications. What is and what is not substantial is still not defined. And the way the rules are drafted mean it’s still the local authority’s view on that which matters.

If the Secretary of State calls in a reconfiguration programme, the relevant NHS organisations will have ten days to respond with all the evidence needed to consider the matter. Record keeping practices are always important, now they will be more important than ever.

Stakeholder relations will be more important than ever and will need to be properly resourced. Until now, the process has partly shielded NHS bodies from campaign groups. The only real paths for a campaign group were to exert political pressure, or take the big step of attempting to bring a judicial review. Now anyone can ask the Secretary of State to call in any service change proposal. The requirements set out for people making call-in requests are unlikely to stop a barrage of forms being completed and needing to be processed by the department.

Perhaps surprisingly, temporary service changes will not be notifiable. Local authority scrutiny committees will still expect to be informed about them.

What stays the same?

Lots is unaffected by these changes:

• The duty to involve service users, carers, local people and their representatives.
• All the other health scrutiny responsibilities and powers, including the duty for NHS bodies to consult affected local authorities on substantial service changes.
• Equality and health inequality duties stay the same, and 
• Systems still need to evidence proposals meet the five tests of service change.

There will be lots of uncertainty as these changes come into effect. There are still lots of questions without answers.

We’ll be watching closely and will keep you up to date. We’re very interested to hear from you on how it’s all being seen in your organisations.

We are also hosting an upcoming webinar on this topic. In the meantime, please get in touch for support.