For years we lacked clarity on what the requirement is in temporary service change situations, then in 2020, an NHS Trust made urgent temporary changes to some services as part of its phase 2 COVID-19 response. The decision was challenged in court.

The Dawson case, as it is known, looked at whether this Trust had met its statutory duty to involve service users when it made the decision to designate a hospital as a temporary COVID-19-free “Green Site” in May 2020. The hospital’s accident and emergency (A&E) department was closed temporarily and in its place, an urgent treatment centre was set up. Patients needing A&E were taken to, or had to travel to, other hospitals. The Trust took four weeks to prepare the proposal for consideration by its Board. It informed stakeholders three days before that Board meeting.

The Judge’s ruling ultimately centred on defining the quality and timing of “meaningful involvement” required by the duty to involve, even in circumstances of urgency.

There are very useful points that engagement and involvement professionals and service change leaders can take from the Judge’s consideration of the case as set out in his judgment.¹

Understanding the duty to involve

The case summarises the requirements of the duty to involve as a meaningful opportunity for service users to be involved at a formative stage, before a decision. Service users may or may not choose to take that opportunity to be involved. It recognises that:

• Involvement in planning, in development and consideration of proposals for change, and in decisions to be made about the operation of services, are the essentials of meaningful and fair participation in decision making.
• Arguing that no involvement can take place until a proposal is final, or virtually final, it is inconsistent with the duty to involve service users in the “development” of proposals.
• The longer a temporary change is in place, the greater risk that the change will be impossible to reverse.

1. There is no exemption from the duty for urgent cases or temporary changes

The fact that a proposal or decision is said to be temporary is not the important consideration in deciding what the arrangements for service user involvement should be. What matters is what impact the decision will have and for how long.

Not in the case and relevant here is that in urgent cases where an organisation is genuinely satisfied the welfare of patients or staff is at risk, there is an exemption from the duty to consult local authority health scrutiny committees.²

2. Informing is not involving

Informing people might be an appropriate action at a point in the process of developing proposals for changes to services. On its own, informing people is not involvement.

3. Where there is time to plan, there is time to involve

NHS organisations that are developing plans to change services should take steps to involve service users in the development and consideration of their proposals. It is the organisation’s responsibility to do as much involvement as it reasonably can in the time available and  allocate resources to make it happen.

4. The principles of fairness and proportionality apply to the duty to involve

The more impactful and the longer term the proposal or decision, the greater the degree of involvement of service users the duty will require. 

Where the matter is urgent, and a decision is taken on a genuinely short term or provisional basis and is genuinely open to reversal or modification very limited arrangements for public involvement could be acceptable.

Blog by: Paul Parsons

¹ Dawson v United Lincolnshire Hospitals NHS Trust [2021] EWHC 928 (Admin)
² R23(5), The Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 (as amended).