New statutory guidance on public involvement in the planning and development of NHS services

1 AUGUST 2022

| 1 min read

What does it say and what does it mean for NHS organisations planning service changes? Samuel Lindsay explains what you need to know if you are involved in plans, proposals, and decisions regarding NHS services.

NHS England and the Department of Health and Social Care have published new guidance, Working in Partnership with People and Communities. It replaces the 2017 statutory guidance for commissioners, the 2008 statutory guidance for trusts and the 2021 Implementation Guidance for Integrated Care Systems.

There are not one but six forewords – including four from Integrated Care Board chief executives.

Who’s this guidance for?

This is statutory guidance for Integrated Care Boards, NHS trusts and foundation trusts, and has been adopted as policy by NHS England. It provides “good practice” advice for Integrated Care System partner organisations. Participation responsibilities in ICSs are summarised in a table at page 17.

It is, therefore, relevant for everyone involved in planning and developing NHS services.
What’s covered?
Running to a lengthy 85 pages, the guidance is – in our view – the most comprehensive on public involvement published to date. It sets out an overall ambition and strategy for public involvement for the new era of NHS collaboration, details the logic for greater involvement and sets out the connected legal duties and responsibilities that apply.

The main body of the document is supplemented by two annexes:
- Annex A provides practical advice on implementation
- Annex B sets out in detail the various legal duties and responsibilities that apply
An ambitious objective

The stated ambition is “for health and care systems to build positive, trusted and enduring relationships with communities to improve services, support and outcomes for people.”

This is unpacked on page 14, which makes clear that it involves embedding involvement and collaborative working into the planning and development processes, not just carrying out discrete involvement exercises ahead of specific changes.

The overall involvement strategy is structured around 10 principles developed from existing good practice. These are set out in an infographic on page 8 and covered in detail over pages 24 – 31.

Crucially, these are to form the basis upon which NHSE will assess the performance of ICBs on various connected duties, including duties of public involvement (under section 14Z 45 NHS Act 2006), so they are essential reading.
Support on implementation
Practical advice and examples of best practice are provided in Annex A. There's lots of good, pragmatic material here on what effective involvement looks like and how to achieve it. Case studies help bring things to life too.

As with previous guidance, the need for fair and proportionate involvement is made clear. So too is the fact that involvement can take many forms, ranging from the sharing of information right through to a full consultation.

For the first time, there are specific models for public involvement detailed. These include “co-production” (page 38) and “community-centred approaches” (page 40).

Equality considerations and methods for involving people (including hard to reach people) and for collaboration between the NHS and other partners such as Healthwatch, local authorities and work forces, are also covered. Decisions in urgent situations are dealt with on page 44.

Interestingly, the guidance also gives a steer on what to avoid, including “three main pitfalls” on page 35:
1. Tick box exercises
2. Unrealistic timescales
3. Limiting public dialogue to service change proposals
The legal duties and responsibilities
Legal duties connected to public involvement are summarised on page 16 and detailed in Annex B.

The duty to make arrangements to involve the public in the planning and delivery of NHS services remains largely unchanged by the Health and Social Care Act 2022 except that it has been extended to include carers and representatives (in respect of ICBs and NHS England).

The Gunning Principles - mandatory for a fair consultation and indicative of fairness for other categories of involvement - feature on page 68.

The guidance contains several tools and infographics throughout, but the “process for assessing whether the legal duty to involve applies” flowchart on page 65 is, in our view, the most helpful.

It is a vast improvement over previous similar tools and will no doubt see plenty of use as decision-makers seek to determine whether a change will trigger legal duties to involve the public.

Also covered exhaustively in Annex B are the Public Sector Equality Duty and duties to reduce health inequalities. These will be familiar to readers with experience of service reconfiguration. We also now see express reference to the duty to promote innovation and research and, interestingly, to the Public Services (Social Value) Act 2012 requirement to have regard to how services can be commissioned to secure wider social, economic and environmental benefits.

Alongside these pre-existing duties is the new “triple aim duty” introduced by the Health and Care Act 2022. Under it ICBs, NHS trusts, foundation trusts and NHSE must have regard to the “likely effects” of their decisions in three areas:
1. Health and wellbeing for people, including its effects in relation to inequalities
2. Quality of health services for all individuals, including the effects of inequalities in relation to the benefits that people can obtained from those services
3. The sustainable use of NHS resources.
A helpful infographic setting out how public involvement will help ensure that ICB’s discharge the triple aim duty is provided on page 19. This duty will no doubt add to the challenges NHS decision-makers already face, but reflects the importance being placed on both reducing health inequalities and driving service efficiencies without compromising quality of care.

Legally mandated strategy plans and reports are also covered and there is a helpful infographic on page 80 that shows each of the strategies and plans required, their purpose and who is responsible for what in respect of them.
Service reconfiguration at scale

Consultation and service reconfiguration at scale is covered within Annex B (sub-section B3). This section explains how the strategy applies to large scale reconfiguration and addresses those things specific to large scale change, such as the separate duty on commissioners and providers to consult local Health Overview and Scrutiny Committees where there are proposals for substantial development under consideration.

The Secretary of State’s controversial new powers to intervene in service reconfiguration introduced by the Health and Care Act 2022 are not yet in force and are not covered in this guidance. There is reference on page 72 to plans for DHSC to publish separate statutory guidance on these functions in due course, alongside an update to the 2014 local authority health scrutiny guidance.

NHSE’s assurance process continues to apply and NHSE is expected to update its Planning, assuring and delivering service change for patients’ guidance to reflect the new functions too.

Supporting you

We think this guidance is probably the best yet. It's lengthy, but accessible, and contains useful, practical advice. But even with this new guidance in hand, some situations may prove particularly difficult to navigate unaided.

We can help you.

Our team of experts are used to working closely with client teams to help them plan and deliver service development programs and public involvement exercises.

We also regularly support NHS organisations when their decisions are challenged.

If you need help, don’t hesitate to contact Samuel Lindsay, Jill Mason or Katrina McCrory.

Our content explained

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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Samuel Lindsay

Principal Associate
Samuel Lindsay

Principal Associate
- +(44)(0)1223 222467
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New statutory guidance on public involvement in the planning and development of NHS services

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