“Each [LHB] must make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on – (a) the planning of the provision of those services, (b) the development and consideration of proposals for changes in the way those services are provided, and (c) decisions to be made by the [LHB] affecting the operation of those services.” (a) the planning of the provision of those services, (b) the development and consideration of proposals for changes in the way those services are provided, and (c) decisions to be made by the [LHB] affecting the operation of those services.”
“Each [CHC] must – (a) represent the interests in the health service of the public in its district, and (b) perform such other functions as may be conferred on it by regulations under paragraph 2.”
“It is the duty of each Council to scrutinise the operation of the health service in its district, to make recommendations for the improvement of that service and to advise relevant [LHBs]… of such matters relating to the operation of the health service within its district as the Council thinks fit.”
“Considering changes 28. Section 4 outlines the continuous engagement that must take place whether or not any changes are being proposed, and sets out the expectation that this will be the normal mechanism through which service changes are taken forwards. 29. Alongside this, NHS organisations must also manage the relationship with and pay due heed to the statutory right of CHCs to consider change proposals. This is particularly important in determining whether a change should proceed to more formal consultation – i.e. the second stage mentioned in paragraph 5. In considering change proposals, it will be important for CHCs to take into account the views expressed by the advisory mechanisms established by the NHS Reforms (Stakeholder Reference Group; Professional Forum and Partnership Forum). 30. Not all changes will automatically proceed to formal consultation. As indicated above, most issues should be dealt with through the process of continuous and effective engagement and every effort should be made to reach agreement resulting from that process. Formal consultation 31. There may be some cases where, exceptionally, the view is taken that a more formal consultation is required. A key issue to be determined as to whether formal consultation is required is whether the change is substantial or not. In general substantial change should be the subject of formal consultation though it may not be appropriate where the proposal is not controversial. It may also be appropriate that a change, although not substantial, ought to be the subject of formal consultation. LHBs, with their CHCs, should develop a local protocol for dealing with this…. As part of this analysis, the CHC and other stakeholders, in assessing proposals and participating in discussions about consultation, should be conscious of the potential to compromise the LHB’s ability to maintain a full service for the whole population it serves. 32. Where is appears likely that a formal consultation could take place, it is proposed in future that this should be conducted on a two stage basis. The first stage is for NHS organisations to undertake extensive discussion with all the key stakeholders, to include: • the Stakeholders Reference Group • the Professional Forum • the Partnership Forum • the [CHC] • the Local Service Board • staff and their representative bodies • other key partners as appropriate 33. The purpose of these discussions will be to explore all the issues, to refine the options and to decide and agree on which questions will be set out in the consultation. Only when it is satisfied that this first stage has been properly conducted, should be NHS organisation proceed to formal consultation. 34. Following the first stage described above, a formal consultation period of a minimum of 6 weeks should be sufficient in most cases if the issues have already been fully explored during the first stage and if the CHC agrees. 35. A number of issues should be considered right at the start, because they will impact on decisions to be taken at various stages throughout the formal consultation process. These include: • … • has there been any previous consultation carried out on the same or a previous related or similar issue, e.g. for local authority services? • who should be consulted, on what and how? • … • what resources are needed and available? …”
“Ceredigion requires significant capital investment to support service changes designed for this rural economy. The changes proposed are dependent upon delivery of the ‘front of house’ scheme for Bronglais Hospital which will be the [Regional General Hospital] for Ceredigion, the community hospitals at Aberaeron and Cardigan and the integrated development at Tregaron (Cylch Caron).”
“The [UHB’s] aim is to ensure maximum integration, increased community services and access to beds providing care for those with a wide spectrum of needs. It is likely that such a model will provide realistic options to hospital care.”
“The Senior Sister provides [an] ‘on call’ service when there is only 1 [registered nurse] on duty out of hours, however, this is as a safety net and is not sustainable. [Registered nurses] are increasingly voicing their concerns on the stress this is causing to them personally. This is evidenced by their DATIX reporting”
“This decision was not taken lightly, but was necessary in view of the ongoing staffing issues at the Hospital in order to be able to proper[ly] address the ongoing staffing issues and ensure patient and staff safety. The temporary closure of the ward would allow for a period of retraining of the staff and would allow for further reviews of the situation at the Hospital to take place. An email was sent to the practice managers of the GP surgeries stating: ‘Following a concern raised, Cardigan Hospital will be closed to admissions whilst a review is undertaken of all current inpatients. Please can you undertake a medical review of all your patients currently in Cardigan Hospital as part of the process?’”
“As a result of the further reviews conducted and the consideration of the longer term issues, it became apparent to the County management team that permanent closure of the ward at the Hospital was unavoidable. The root causes of the problems being encountered were fundamental and long term problems such as the poor training and skills of staff, the sickness absences and the very real danger that the [UHB] could not guarantee that shifts would be properly staffed. In addition to this, it was clear that the staff morale was low, and they were not happy with the situation, and the poor environmental conditions at the Hospital itself could not be resolved. A review of the patient notes for the patients remaining at the Hospital demonstrated that the ongoing problem of poor record keeping was also still an issue. During daily reviews of the situation, it became clear that the situation at the Hospital was irrecoverable and there was no clinically safe way back to reopening the Hospital to new admissions.”
“Whilst it is possible to provide appropriate level of care within a traditional hospital setting this will require investment to maintain the required or requested establishment. This could only be achieved by transferring services from community to the hospital.”
“1. Community nursing staff will be transferred to support Cardigan Hospital, this will reduce the community capacity and encourage admission to hospital, it is likely that community staff will consider alternative employment. Although an option, this not compatible with the future service model. 2. Closure of the hospital providing a transitional service in advance of the new development [i.e. the New Facility]. This will facilitate the development and progress of a service model, irrespective of the proposed building. This will require training and implementation of staff to work in alternative services, including the development of an integrated community model. The opportunity will exist to develop a South Ceredigion County palliative care team and the provision of alternative dementia care in the community. As a commitment has been made to the provision of beds in the South Ceredigion area, the commissioning of alternative facilities will include local nursing homes, residential care including extra care. An action plan for implementation is being developed.”
“CDG agreed the suspension of in-patient beds at the Hospital with a transitional service to be provided elsewhere within the community until it was known what the new model was. Affected staff would work in the community and they needed to be reskilled appropriately. TP advised that there needed to be discussions with Unions, AM, MP, LA and CHC and a clear audit trail and evidence of these discussions. The process was that beds would be suspended until it was known what the new model was…”
“Although the minutes use the words ‘the suspension of in-patient beds’, it is clear that no further patients would be admitted to the Hospital and the transitional arrangements made would remain in place until [the New Facility] and the new model of care had been decided upon. Therefore, as per the recommendation, the in-patient beds at the Hospital were closed.”
“We are likely to request that a full public consultation exercise be undertaken upon this matter if indeed it is to be permanent position rather than a short term reaction to current staffing and safety issues. We will determine this when we receive and have been able to analyse the full detailed information requested above, and when we will also decide as to whether your proposals are acceptable to patients and the public, are to be challenged, or alternatively we endeavour to achieve some compromise solution.”
“We believe that there is a need for the matter to be debated openly and honestly with all stakeholders and with the wide population that is served by the Cardigan Hospital. Therefore, and in this latter respect, I now formally request that the LHB enter into a full public consultation on its plans for the permanent closure of beds in Cardigan Hospital.”
“35. The common law imposes a general duty of procedural fairness upon public authorities exercising a wide range of functions which affect the interests of individuals, but the content of that duty varies almost infinitely depending upon the circumstances. There is however no general common law duty to consult persons who may be affected by a measure before it is adopted. The reasons for the absence of such a duty were explained by Sedley LJ in [BAPIO]. A duty of consultation will however exist in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation. The general approach of the common law is illustrated by the cases of R v Devon County Council ex parte Baker[1995] 1 All ER 73 and R v North and East Devon Health Authority ex parte Coughlan[2001] QB 213 , cited by Lord Wilson JSC, with which the BAPIO case might be contrasted. 36. This case is not concerned with a situation of that kind. It is concerned with a statutory duty of consultation. Such duties vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or holding public meetings; and so on and so forth. The content of a duty to consult can therefore vary greatly from one statutory context to another: ‘the nature and the object of consultation must be related to the circumstances which call for it’ (Port Louis Corporation v Attorney-General of Mauritius[1965] AC 1111 at page 1124). A mechanistic approach to the requirements of consultation should therefore be avoided. 37. Depending on the circumstances, issues of fairness may be relevant to the explication of a duty to consult. But the present case is not in my opinion concerned with circumstances in which a duty of fairness is owed, and the problem with the consultation is not that it was ‘unfair’ as that term is normally used in administrative law. In the present context, the local authority is discharging an important function in relation to local government finance, which affects its residents generally. The statutory obligation is, ‘before making a scheme’, to consult any major precepting authority, to publish a draft scheme, and, critically, to ‘consult such other persons as it considers are likely to have an interest in the operation of the scheme’. All residents of the local authority's area could reasonably be regarded as ‘likely to have an interest in the operation of the scheme’, and it is on that basis that Haringey proceeded. 38. Such wide-ranging consultation, in respect of the exercise of a local authority’s exercise of a general power in relation to finance, is far removed in context and scope from the situations in which the common law has recognised a duty of procedural fairness. The purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority’s decision-making process.”
“A key issue to be determined as to whether formal consultation is required is whether the change is substantial or not. In general substantial change should be the subject of formal consultation though it may not be appropriate where the proposal is not controversial.”
“… [T]he court should not construe this scheme as if it were a statute but as a public announcement of what the Government were willing to do. This entails the court deciding what would be a reasonable and literate man’s understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence.”
“The terms ‘consultation/consult’ are used to describe the more formal, focused consultation which is to be employed if substantial or controversial changes are under consideration.”