Ten rules for running an effective, lawful public consultation

The best way to run an effective and lawful public consultation when planning to reconfigure an NHS service

  1. Consult when your proposals are at a formative stage

    Making a decision on a change to services, and then consulting on that decision, is unlawful. If you are strongly of the view that only one of a number of alternatives is realistic, then you should say so and explain why, but you must give people the opportunity to disagree. 
  2. Mind your language!

    Decisions by public bodies have been struck down by the courts simply for the use of language that gives an appearance to the public that a decision had already been taken and the consultation was a sham.
  3. Set out what you are proposing; what the options are; and why these changes are needed

    The public body must give out information that contains sufficient reasons for particular proposals, to allow those consulted to give those reasons intelligent consideration and an intelligent response. If the public do not know what they are being consulted about or why a change needs to be made, they cannot properly take part in the consultation process. 
  4. Be up front about the reasons for a proposed change

    In the current climate, the driver for change will often be largely financial. If that is the case, say so. Set out the financial position that you are faced with and if this is the reason for the proposed changes. Hiding behind other, more palatable, reasons to change a service risks your consultation being struck down as unlawful. 
  5. Think about how long the consultation will last

    The public must have adequate time to respond. The Cabinet Office Principles state “timeframes should be proportionate and realistic to allow stakeholders sufficient time to provide a considered response … and might typically vary between two and 12 weeks”. 
  6. Take the responses into account before making a final decision

    NHS bodies are not bound by the views of the public. Consultation is not a vote. It is, however, essential that you put the public's views in front of the decision makers and that they take those views into account when reaching their decision. You must ensure that you have a paper-trail demonstrating that this was done. If a public body takes a decision that goes against the general views of the public it needs to have good reasons for it and make sure those reasons are recorded. 
  7. There is no set form for a consultation

    How to conduct one is a decision for the public body. The courts have approved consultations that involve responses on paper or electronically, public meetings and even citizens juries. What matters is whether the consultation is fairly conducted. 
  8. You can consult on a single option

    If a public body identifies only one serious option to put to the public, it is entirely lawful to consult on implementing that single option. However, you may need to justify why only one option was realistic. Also, you must allow members of the public to suggest alternative options and, if they do so, you must give those options genuine consideration. 
  9. You can reach a final decision that was not one of the options put forward for consultation

    But remember two points. First, there must be good reason for such a change of approach – usually it will be based on information discovered as part of the consultation. Secondly, if the final decision departs very substantially from the initial options, it may be necessary to undertake a second consultation. You do not have to give consultees the opportunity to see and to comment on the responses of other consultees. However, if a response has opened up a new issue that you are taking into account, you should consider giving other consultees the opportunity to comment on that issue. 
  10. Be careful of making promises!

    If clear, unequivocal promises have been made to individual service users or groups as part of the consultation process, the public body will have created a “legitimate expectation” that those promises will be kept. If you want to go back on them, you will need to redo the consultation exercise. Failure to do this risks the whole process being struck down by the courts. It is far safer never to make a promise or, if you do so, to qualify the circumstances in which you will be bound by it.

If you found these rules helpful, you might be interested in our more comprehensive briefing. Get in touch with Philip Grey to request a copy.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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