New powers for ministers to intervene in NHS service reconfiguration now in force

Important new powers for ministerial intervention in NHS reconfigurations came into force on 31 January 2024. The Department of Health and Social Care has released guidance summarising the powers and process. Here we summarise the new process and its implications. 

What are the powers/duties?

The Secretary of State for Health and Social Care (‘SoS’) now has a ‘call-in’ power to review and intervene in certain proposed reconfigurations of NHS services. 

‘Reconfiguration of NHS services’ is ‘a change in the arrangements made by an NHS commissioning body [NHS England or an ICB] where that change has an impact on (a) the manner in which a service is delivered to individuals (at the point when the service is received by users), or (b) the range of health services available to individuals’.  

NHS commissioners have a duty to notify the SoS of a reconfiguration whether it is leading the reconfiguration itself, or if a provider in its area is proposing to do so. Both NHS commissioners and NHS trusts/foundation trusts have a duty to provide ministers with information and assistance in relation to their review. 

Notably, individuals and individual organisations can now ask the SoS to use their power to call-in a proposal. Whether or not to use the power, will ultimately however be a decision for the SoS. 

In addition to providing evidence that reasonable attempts have been made to try to resolve concerns locally, a call-in request must also state how it meets one of the following criteria:

• There are concerns with the process that has been followed by the NHS commissioner or NHS trust/foundation trust; 
• A decision has been made and there are concerns that the proposal is not in the best interests of the local health service.

When a reconfiguration proposal is called-in, which can happen at any stage in the process, the SoS can take decisions in relation to it which include deciding: 

• whether the proposal should or should not proceed, or should be modified;
• any particular results which should be achieved by the NHS commissioner in taking decisions relating to the proposal;
• procedural or other steps which should/should not be taken; and
• to retake any steps previously taken by the NHS commissioner. 

A further power for the SoS to direct an NHS commissioner to consider reconfiguration of NHS services where it is not already doing so, is included in the legislation but has not yet been brought into force. Consideration will be given to bringing this power into force once the transition to a system including the call-in power has been ‘fully embedded’.

Previous provisions only enabling the SoS to determine the outcome of a reconfiguration following referral from a local authority or Health Overview and Scrutiny Committee have been repealed. 

When do they apply? 

The call-in power applies to ‘notifiable reconfigurations’ which are defined in new regulations – The National Health Service (Notifiable Reconfigurations and Transitional Provision) Regulations 2024 – as being where NHS England, an ICB, an NHS Trust or Foundation Trust is obliged to undertake a consultation in respect of a proposal under regulation 23(1)(a) of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 – ie where substantial development or variation of the provision of health services in a local area is under consideration. 

The power does not apply:

• to the establishment or dissolution of an NHS trust or ICB, or variation of those bodies’ constitutions
• where a consultation with a local authority in relation to reconfiguration proposals commenced before 31 January 2024
• to social care provision for which separate arrangements apply
• to ‘temporary reconfigurations’ – for example where services need to be altered owing to a health and safety risk but will go back to normal once that risk has passed.

How will the process work? 

Following notification, the SoS may give a direction, through a direction letter, to call-in the proposal. They then have 6 months to take any decision or notify the NHS commissioner that no decision will be taken. Once a proposal has been called-in the NHS commissioner must pause steps on the proposal, except as permitted by the direction letter. This will typically include pausing any consultation with a local authority. 

Before the SoS takes any decisions, other parties must be given the opportunity to make representations, including the NHS commissioner, NHS England, each local authority to whose area the proposal relates and any other person that the SoS considers appropriate. 

The Independent Reconfiguration Panel remains part of the process and may be called upon, for example, by the SoS to give advice to it in relation to the call-in or to advise an individual or organisation on whether it should make a request to the SoS to call-in a proposal.

SoS decisions must be published, along with reasons for these, together with a summary of the recommendations made. The NHS commissioner must give effect to the decision and that decision is final (though it will still be amenable to judicial review). In limited circumstances, the SoS may consider or intervene in a reconfiguration more than once. 

What are the implications for service reconfigurations? 

The new SoS power to intervene in reconfiguration plans is potentially far-reaching and concerns have been raised about the impact of ministerial involvement in local decision-making in this way. Whether these concerns are well-founded or not will depend very much on how the powers are used in practice. The statutory guidance issued does provide further commentary about how the powers are intended to be used which includes that: 

• Most reconfigurations will continue to be managed at local level by local organisations best placed to do so and will not require ministerial intervention. 
• Call-in requests are only intended to be used in ‘exceptional circumstances’ where local agreement cannot be reached. The guidance refers to it being used to ‘help unblock issues…’
• The aim of the call-in powers is to ‘support local partners to find a way forward’, to enable improvement to happen faster, and produce ‘sustainable’ solutions to NHS services facing challenges.
• A call-in request will not automatically lead to intervention and is highly unlikely to be considered before local bodies have taken ‘all reasonable steps’ to resolve issues.

The powers have been watered down from some which were discussed during the passage of the Health and Care Bill, for example placing a time limit on the SoS decision. As such, they should not be expected to be applied extensively. However, the fact remains that use of the power is an option. There will inevitably be debate about the extent to which it could erode local autonomy around configuration decisions which may become more frequent in the future, given current pressures on population health and service sustainability.