National initiatives, local engagement and the latest NHS guidance on the duty to involve

The long-anticipated additional guidance for NHS organisations on section 242(1B) of the NHS Act 2006, the duty to involve and good involvement practice, appeared at the end of October – Real Involvement: working with people to improve health services. At 143 pages it is the most comprehensive statement yet about this legal duty.

If I read it rightly, this guidance puts a rather different interpretation on the local procurement of a nationally planned initiative from that which I thought applied. I now think I was wrong in believing the local NHS did not have to have public involvement in the local procurement process of developments that were not part of its own plans.

My assumption was that if developments were centrally directed and that all the local NHS did was implement something it had not planned for itself, then it could just get on with doing that without going through any formal engagement process locally. This key paragraph on page 51 suggests otherwise:

“If new services are planned and procured centrally by the Department of Health, for example intermediate treatment centres, and an NHS organisation is not responsible for those health services, it will not have to involve users or consult the OSC. However, where services are planned centrally and procured locally, the NHS organisation responsible for procuring the service must involve users and consult the OSC where necessary. In addition, it should be noted that an NHS body may have a duty to involve in relation to proposals or decisions which it has not itself generated: the issue is whether the proposal affects the services for which the NHS body is responsible. So a local NHS body may need to involve users if a national decision to procure a treatment centre has an impact on other services for which the body is responsible (see the judgment in R (on the application of Fudge ) v. South West Strategic Health Authority and others (2007)). “

PCTs are responsible for locally procured services and any new service is bound to have an impact on what exists already. If that is the “test” for the section 242 duty according to Real Involvement, then I think the requirement for engagement applies to the local procurement process, even if the initiative is a national one. The first thing that comes to mind in this context is the GP Led Health Centres (GPLHCs) being procured across London in each borough as I write this.

The whole procurement issue is fraught enough without this additional twist to complicate the public’s understanding. Also we have long argued against consulting or engaging with people if the deal is largely done and the important decision made. Consultation isn’t window dressing or rubber stamping.
The first thing to consult on is to get a better name for the procurement process itself. I’ve tried out “procurement” informally a few times recently in meetings and social situations to see what it meant to people. Nobody had a clue except the occasional person who has a particular type of commercial experience.
When “procurement” suggests anything at all, it has an association especially for older people with sleaze and prostitution. This is not the best understanding to be starting with when PCTs are trying to change services in London.

Trying out “tendering” wasn’t much better. Invariably it got a response that was about “privatisation” in one way or another. No one I’ve spoken to appreciated that tendering could be done by GPs or social enterprises (“social what”? people asked): “tendering” meant involving private companies.

That’s the level of incomprehension I fear we are up against. With legal and reputational risks existing around procurement already, let’s hope this gap in understanding doesn’t kindle into real problems. We are now seeing the moment when a vocabulary designed for those in the know to facilitate the internal debate needs to be recast for the purposes of public debate. This is not easy to do and cannot be done retrospectively.

One of the elements in getting the LINks off the ground where we under-estimated the amount of work required, is the need to explain and define so much about the vocabulary of the new health and social care services and the organisms that deliver them. People cannot conceive of the future if they do not understand the present.

Users cling to the words they know and the experiences they have had. Sometimes we have to wonder if resistance to change is generated by simple incomprehension of the terms of public discourse. People cannot agree with what they cannot understand even if there are benefits for them in the changes suggested.
Procurement of GPLHCs in London may well produce an example of that which will be tricky to handle, given the Government’s concurrent emphasis on involving patients and the public in decision making and service developments.

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