A refresher on planning, assuring and delivering service change for patients

Does this statutory guidance ring a bell?

First published in December 2013, ‘Planning, assuring and delivering service change for patients’ was updated in October 2015 and March 2018, with an addendum issued in May 2022.

The guidance helps NHS bodies plan and deliver lawful, effective service change while maintaining public confidence.

Now, nearly 13 years after its original publication and more than four years after the addendum, NHS England has published a refreshed version of the guidance.

What the guidance covers

It comprises four parts.

1. Introduction

2. Overview and key themes

3. Process

4. Annexes on:

• Fundamental criteria for pre-consultation and decision-making business cases and strategic outline case

• Best practice checks for pre-consultation and business case (PCBC)

• NHS England support and further resources, including ‘Working in partnership with people and communities’ (see our related article here)

• Statutory and general duties relating to service change and reconfiguration in England (including public involvement and consultation)

• NHS England thresholds for assurance decisions

What’s changed?

The refreshed guidance includes the following key updates:

• References to CCGs have been updated to ICBs

• It explains the January 2024 ministerial intervention regime (see our related article here)

• The guidance now better integrates service change and capital business case processes, including strategic outline case criteria and updated business case alignment material

• There’s more emphasis on proportionality, risk, temporary/urgent changes, public involvement and legal defensibility, including references to more recent case law

However, it’s not the final word because further changes may be required to reflect:

• The Health Bill

• The integration of NHS England and Department of Health and Social Care

Key points to keep in mind

As you review the updated guidance, the following points may be helpful to revisit.

Service change

The guidance states that:

• Service change could include accessibility, whether a change in venue or a shift from walk-in services to requiring pre-booking

• Service decommissioning can also be a type of service change

Substantial service change

The following factors need to be considered:

• Changes to the accessibility of the services

• The impact on the wider community and other services (including economic impacts)

• The number of patients affected

• The length of time of the impact of the service change

• Changes to the method or setting of the service delivery (for example, a move from acute to community setting)

It explains that:

• A change of site from which services are delivered, with its consequent impact on patient and visitor travel times, could be a substantial change, even with no changes to the type of services provided

• Decommissioning or significantly reducing the extent of the service(s) being provided could also be a substantial change

• Tendering a service by itself is unlikely to be a substantial change unless the new service specification will significantly change the service patients receive

Temporary or urgent service changes or closures

There’s a lot of helpful detail in this section:

• Where the responsible NHS body is satisfied that a substantial service change decision needs to be taken without allowing time for consultation with the local authority because of a risk to safety or welfare of patients or staff, it may take that decision. In these circumstances it may not be possible, due to the urgency of the change needed, to undertake public involvement or consultation with the local authority in advance of the change being made.

• Where services need to be closed or suspended at short notice, NHS bodies and their partners should act in accordance with the Joint Working Protocol. In all cases, NHS bodies should adhere to their legal duties and good practice, including:

  • Keeping good records of the factors they consider in making these decisions

  • Communicating the changes to affected people

  • Immediately informing the local authorities in the areas affected about changes and reasons for not consulting them under the regulations

  • Undertaking as much public and stakeholder engagement as possible in the time available

• The local authorities in the affected area(s) should be informed of the changes and the reasons for not consulting at the first opportunity. The relevant NHS bodies should provide a formal update to the health oversight scrutiny committee (HOSC).

• Where temporary service changes have been made, which might be considered ‘substantial’, the commissioner should also notify their local NHS England regional team.

• If a provider is making a temporary service change, it must also ensure the ICB is informed. In turn, ICBs should make NHS England aware of changes as soon as possible.

• Where temporary changes are made, a clear plan needs to be established to return the service in a timely manner when practical. Appropriate time scales for this will vary from case to case.

• If there is a proposal to make a temporary change permanent or adopt an alternative configuration, which is considered a “substantial service change”, the full process in this guidance must be followed.

Clear decision maker

The organisation with the legal duty remains ultimately accountable. In most cases, this is the commissioner of the service, even if the provider is closely involved in developing proposals and supporting engagement. The organisation would also need to assure itself that its duties around public involvement (or consultation where appropriate) are properly complied with.

Case law

There are cases (both old and new) interspersed throughout the guidance such as:

• R (Hinsull) v NHS Dorset CCG

• R (Dawson) v United Lincolnshire Hospitals NHS Trust

• R (Nettleship) v NHS South Tyneside

• R (A and Keppel) v South Kent Coast CCG

• Regina v North West Thames RHA and Others ex parte Daniels

• R (Smith) v East Kent Hospital NHS Trust

• R (Juttla) v Herts Valley CCG

• R (on the application of Cherwell DC) v Oxfordshire CCG

• R (Royal Brompton Hospitals NHS Foundation Trust) v The Joint Committee of Primary Care Trusts

There’s lots more in there so do dip into the 50+ pages (which includes an updated summary of the strategic outline case criteria) if, following the summer break, you’re contemplating service change.

If you’d like to discuss a proposed service change, contact Jill Mason.

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