Taking stock: decision-making and stakeholder engagement

The last few months have seen dramatic changes to the delivery of all aspects of healthcare, in response to COVID-19. Clearly, time was of the essence during the initial NHS response, and both commissioners and providers no doubt took pragmatic decisions to abridge their usual processes for service change.

With the pressure on the NHS having eased slightly, there will, hopefully, now be a window of opportunity to reflect on changes that were perhaps made in haste. In particular, consideration can be given to whether temporary changes should be carried forward and placed on a firmer, more permanent footing. 

As we move into this next phase of recovery and reset, we have begun to see themes emerging from our work with clients. Our experience of working with the NHS for many years also allows us to predict, to a degree, what issues may emerge for both commissioners and providers. We hope that in sharing these issues, you will have the opportunity to reflect on the extent to which they may apply to your own organisation and take steps to address those issues that may be a particular concern.

Governance

Transparency:

• Revised governance frameworks - There may have been changes made to governance structures and processes during the peak of the pandemic, such as changes to your schemes of reservation and delegation and changes to the number, composition, and terms of reference of committees. It is important that such changes are reviewed and that documents are amended accordingly to reflect those changes and make clear whether the changes are temporary or now permanent.
• Amendments to constitutions - Some organisations may have made changes to their constitutions or may have been operating outside of the requirements of the constitution for reasons of necessity. You may have found that arrangements that you put into place to respond to the pandemic actually work better than previous arrangements. It is important that such matters are considered and that arrangements are clarified and confirmed as either temporary or permanent. Amendments to constitutions and other governance documents should be made as necessary to reflect the arrangements in place and ensure transparency in how your organisation is operating.
• We would suggest that particular focus going forwards might be on ensuring satisfactory arrangements for online/virtual meetings, since it is likely that they are going to be happening for some time, and in some cases might prove beneficial in the long-term.

Accountability:

• The emergency powers exercised by NHS England during the pandemic and the abundance of NHSE/I guidance and directions to both commissioners and providers has meant that most organisations have had to develop different ways of working; underpinned by a number of action plans to ensure that measures are taken to implement the guidance. Organisations should be clear about their role, their functions and decision-making processes in the midst of such communications and guidance. Individual organisations remain accountable for their decisions and it is therefore important that the rationale for decisions is clear and documented. It is also essential to ensure that any new decision-making structures and processes are clear and transparent, together with how such processes ‘fit’ with existing processes within your organisation. 
• Legislation introduced because of the pandemic will also no doubt have led to changes in the way in which services are commissioned and provided. It is important that such changes are appropriately documented and communicated to all concerned.
• Key decisions about service changes may have been made. We suggest you consider whether there are any key decisions that could or should be revisited at this time to put them on a firmer footing. Were decisions initially made on the basis of changes being temporary, but will the arrangements now stay in place for a long time or even indefinitely? Have service models that were approved subsequently changed, so that a fresh decision and rationale is needed?
• It is probable that there have been many changes implemented by providers in response to NHSE/I directions or decisions made within hospital cells for example. It is important to capture any significant decisions made outside of the usual organisational decision-making processes and consider whether those decisions need to be reviewed by your board or governing body. Consideration should also be given to whether commissioning bodies are aware of the true extent of changes that have been made, and any impacts that these changes may have on contracts in place.

Engagement:

• Clearly in the midst of all this change, it is important to ensure that there is adequate engagement with all relevant stakeholders on service change in order to comply with statutory duties to involve patients, the public and health scrutiny committees of local authorities, but also constitutional duties and general expectations of engagement. Consideration should be given to your current engagement with members of your organisation and stakeholders – members of staff, member practices, lay members, non-executive directors, governors, local authorities, patients and the public – and how such engagement may be enhanced. The fact that many face-to-face meetings cannot happen at present means that there is an ideal opportunity to consider how your organisation can better engage with stakeholders ‘virtually’, as such arrangements may be preferred or more beneficial in the long-term. A survey or questionnaire to gather people’s thoughts on this may prove beneficial.

Public and Patient Involvement

• There has understandably been limited public engagement in some cases, due to the speed with which services have had to be reconfigured. Now that it is clear some or most services will be operating differently for some time, consideration should be given to:
  • whether arrangements for public and patient involvement, which is a statutory requirement on commissioners and providers, should be revised given that previous approaches based on face-to-face contact will not be deliverable for some time;
  • the engagement that should be undertaken now, where at least some of the changes that were initially implemented on an urgent basis will be maintained for the medium term; and
  • how patients, the public, and relevant stakeholders can be kept informed of changes, even if actual engagement over and above the provision of information is not practicable or possible.
• Commissioners have a continuing duty to engage with Local Authority Health Overview and Scrutiny Committees (HOSC), including where providers have made changes to services, even though under the relevant legislation there is an exemption from the duty to consult with the HOSC in an urgent situation. Consideration should be given to whether:
  • commissioners have a comprehensive understanding of the range of changes implemented by or anticipated by providers, and whether these should be reported to the local HOSC; and
  • NHS bodies locally have sought to agree a co-ordinated strategy for engagement with the HOSC.

If a HOSC is dissatisfied with the level of information communicated to it, it has extensive powers to make requests for information, including the provision of written information and explanations and the attendance of NHS employees before the HOSC to respond to questions. It seems likely that attendance could be agreed to be via video conferencing in the current circumstances. 

Public sector equality duty and health inequalities

• Arising from the COVID-19 pandemic, we expect to see a heightened focus on equality issues due to:
  • The disproportionate impact of COVID-19 on BAME patients and staff
  • The difficulties that new models of service delivery, such as digital health may present to some of those with protected characteristics under equality legislation
  • The inequalities highlighted by the death of George Floyd
• For key decisions made during the early stages of the crisis, we would suggest that organisations should consider the following:
  • Have they been equality and health inequality impact assessed?
  • Do they require continued service/policy and performance review to assess actual equality or health inequality impact?
  • Could steps be taken now or in the future to improve the service or policy by eliminating or reducing any negative impact?

All of the above issues may, if they are not considered and addressed appropriately, lead to legal challenges (judicial reviews, complaints and claims) and other problems surfacing at a later date based on for example:

• A failure to comply with equality duties
• A failure to engage patients, the public and relevant stakeholders when temporary decisions become permanent
• Confusion about legal responsibility for decision-making due to the involvement of NHSE/I, the development of decision-making forums and groups, such as the hospital and out-of-hospital cells and local resilience forums, and possibly guidance from other regulators.

Many organisations are also concerned about the possibility of a public inquiry or investigation into the government’s response to the pandemic. It is therefore crucial that your organisation ensures that it is operating and has so far operated in accordance with all legal, constitutional and governance requirements, and that where operations have had to deviate from such requirements due to urgency and/or necessity, that audit trails and documented rationales for such departures are readily available.

If you wish to discuss any of the above or have any queries arising from the issues highlighted, please contact Emma Stockwell, David Hill or Michael Wright.

For further updates and other articles discussing the impact of the coronavirus please view our coronavirus hub.