From his perspective as a PEC member in London’s PCT-land, Andrew Craig offers a personal view about how to start complying with the new legal duty in Section 242 and make it work to the advantage of good governance in the NHS.
What is “Section 242”?
The NHS loves shorthand and “Section 242” will soon be part of it: shorthand in fact for the general legal duty on the NHS to consult and involve service users in everything to do with planning, provision and delivery of services. The duty specifically applies where there are changes proposed in the manner in which services are delivered or in the range of services made available. A briefing about Section 242 is available from the Department of Health (December 2007: Gateway Ref 9138) Statutory guidance – i.e. compulsory – about the 242 duty and the related sections of the Local Government and Public Involvement in Health Act 2007 will appear later this spring. DH is clear that all this is being positioned so LINks (Local Involvement Networks) can take advantage of it.
The consolidated NHS Act 2006 re-enacted and enhanced the 2001 “Section 11” duty to consult and involve users of health services. The new Section 242 duty comes into force 1/4/08 and applies to all NHS bodies in England. It defines “user” of health services as someone to whom health services are being or may be provided. This is meant to encompass the public and carers. There is pressure to extend this to social care services as well, but at the moment Local Government operates under slightly different duties about involving service users. I think convergence in the future is very likely.
The Section 242 duty is an integral part of commissioning and one of the “world class commissioning” competencies. It is significant that Patient-Public-Involvement (PPI) is now part of commissioning and systems management within DH. It is intended that commissioning bodies take the lead in meeting Section 242 duties.
The duty also applies to all NHS providers including Foundation Trusts and any independent providers – profit-making or social enterprises – which are commissioned by the NHS. This includes primary care contractors because they provide “health services for which [the PCT] is responsible.”
How could PCTs in particular start responding to this duty?
- Make it part of Board governance
Complying with Section 242 is integral to good governance. The suite of compliance and assurance policies that the PCT maintains and which are reported regularly to the Board should reflect this. But compliance shouldn’t be onerous or else people will back off or find ways to fudge. To be effective it has to get into the bloodstream of the NHS so that people do it naturally rather than as an add-on or an afterthought.
- Do proactive PPI and Equality Impact Assessments
Some PCTs already have a system which is supposed to ensure that their PEC and Board papers provide information on how the patient and public involvement implications of the topic under consideration have been assessed and what intelligence has been generated by engaging with people likely to be affected by proposed developments. That is excellent, but in practice and due to pressure of time and the impossible deadlines managers often work to, the objective is often more aspirational than real. But it must become real. We all need a system to measure proactive compliance with the 242 duty rather than trying to backfill with engagement evidence after policy decisions are taken.
The same is true of equality impact assessments (EIAs) – if these were done proactively and thoroughly they would generate a lot of evidence around engagement with current and prospective users which could be put to satisfying the requirement to engage and consult. It is hard work, but ignoring it will create real risks and will keep the PCT from being a world class commissioner.
- Understand and work collaboratively with LINks
When the Local Involvement Networks (LINks) are up and running, they will be an important – but certainly not the only – means of meeting this duty. The Act says the 242 duty can be discharged “directly or through representatives” and a LINk is meant to be “a network of networks” involving organisations as well as individuals. The issue of the capacity of the LINk to work in this way will need to be addressed early on and there is a considerable opportunity for the PCT in particular to form mutually beneficial relationships with these new bodies. LINks should become strong and well-informed so that they can function as independently-minded “critical friends” across health and social care.
- Use existing consultation work as Section 242 learning opportunities
Section 242 is an opportunity not a threat. PCTs should be creative and positive about this. I was struck when reading the resource pack produced by the London Local Medical Committees on the Darzi Healthcare for London review at the strength of their views that health organisations which don’t have patients on side are vulnerable. How very true in this age of alternative providers! That is a strong incentive to make a Section 242 learning opportunity out of every bit of consultation and engagement work going on now, before the legal duty starts to bite. Can we all prove that our consultation efforts have real “legs” in the community? I doubt it. So what better reason to start collecting the evidence now that would be needed to satisfy a scrutiny from the LINk or the Health Overview and Scrutiny Committee to see if we have complied with the 242 duty? Doing this would be a good “dry run” for all concerned. It could identify any shortcomings in our engagement processes that after 1st April could turn into real risks when the Section 242 duty is fully in force.
- Here’s one we made earlier
If you want to see an example of how Wandsworth PCT has used “pre-consultation engagement” as en effective process to develop options which inform its formal consultation work on the future of health services in Battersea and North Wandsworth, I commend the PCT’s website to you where it is all explained: how they did it, what they learned and how this has been all carried forward into formal consultation which is now ongoing with the local community into May. I think this will turn out to be the best local engagement process we have ever undertaken and a learning exercise for us about getting ready for Section 242 compliance.
Thoughts and examples from readers about Section 242 learning and compliance would be greatly welcomed.