Good Governance in Decision. Title goes here. Making. Subtitle goes here. - Defending yourself against challenge. Name Surname One Name Surname Two

Transcription

1 Good Governance in Decision Title goes here Making Subtitle goes here - Defending yourself against challenge Name Surname One Name Surname Two

2 Your CCG s constitution o Commissioning intentions o Scheme of reservation and delegation o Committees terms of reference o Managing conflicts of interests Your decision making should follow the procedures you have set out

3 Accountability HealthWatch HWB L Auth Pub Health CCG Monitor Patients NHS E

4 Obligation to involve the public o Section 14Z2 of the NHS Act 2006 CCGs must o must make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways) o (a) in the planning of the commissioning arrangements by the group, o (b) in the development and consideration of proposals by the group for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and o (c) in decisions of the group affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact.

5 Guidance on consultations o NHS England Transforming Participation in Health & Care (September 2013) o NHS England - Planning and delivering service changes for patients (December 2013)

6 Top tips for a lawful consultation

7 Top tips for a lawful consultation o Consult when proposals are at a formative stage o Mind your language avoid it has been decided that o Set out why changes are required, your proposals, the options o Be up front about why change is required o Think about how long consultation should last (2-12 weeks) o Take the responses into account (although consultation is not the same as requesting a vote) o Don t make promises o You can consult on a single option o You can reach a decision that is different from one of the options consulted upon. Be careful though Must be a good reason Might have to consult again on the decision

8 It s not just consultation o Commissioning plan o Procurement policy o The importance of public engagement throughout the commissioning cycle

9 The Public Sector Equality Duty (PSED) o On overarching single duty that replaces the previous race, disability and gender equality duties. o The aim of the legislation is to ensure that public bodies play their role to promote equality of opportunity in society. o Often links in with the obligation to consult on service changes

10 PSED Section 149 of the Equality Act 2010 o (1) A public authority must, in the exercise of its functions, have due regard to the need to- (a) eliminate discrimination, harassment victimisation and any other conduct that is prohibited by or under this Act (b) advance equality of opportunity between persons who share a relevant characteristic and persons who do not share it (c) foster good relations between persons who share a particular characteristic and persons who do not share it.

11 PSED o The Act explains that having due regard for advancing equality involves: Removing or minimising disadvantages suffered by people due to their protected characteristics; Taking steps to meet the needs of people from protected groups where these are different from the needs of other people; and Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low

12 PSED o Protected characteristics Age Disability Gender reassignment Pregnancy and maternity Race Religion or belief Gender Sexual orientation

13 PSED when does the duty apply? o It applies to all decisions taken by public bodies, whether policy decisions or decisions relating to individual cases o Decision to decommission a service? The duty applies. o Decision on an exceptional funding request? The duty applies.

14 PSED The duty is to have due regard o R (Baker) -v- Secretary of State for Communities and Local Government [2008] o Lord Justice Dyson: it is important to emphasise that [the duty] is not a duty to achieve a result, namely to eliminate unlawful discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve those goals.

15 PSED What does it mean to have due regard o Lord Justice Dyson went on to say: What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and, on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.

16 PSED Equality Impact Assessments o There is no statutory obligation to carry these out but they are a method of demonstrating compliance with the duty. o If a public authority does carry out an EIA, it must do it properly. It should be an integral part of the formation of a proposed policy, not justification for its adoption.

17 Who could challenge a decision? o Patients & patient groups o Disgruntled suppliers/providers o Monitor o Competition Authorities

18 How might they challenge?

19 Judicial Review Title goes here Subtitle goes here 27 April 2010 Name Surname One Name Surname Two

20 What is judicial review? o A High Court examination of the lawfulness of decisions, actions or omissions by public bodies o Assessed against: Reasonableness / irrationality Procedural fairness The legal powers of the public body

21 JR is bad news. o Expensive and time consuming o Results in bad publicity

22 Stages of JR o Pre-action protocol letter o Response to that get legal advice first! o Claimant decides whether to issue proceedings. o If they do.

23 Stages of JR 2 o Defence o Permission decision on papers o Possible appeal against refusal of permission o Full hearing

24 Injunctions o Claimants may ask the court to halt your proposed changes pending resolution of their claim

25 Remedies o Discretionary Highly unlikely to make you offer a particular treatment / commission a specific service o More likely to make you go back and take your procedural steps all over again

26 Costs o In short you re unlikely to get your own legal costs back even if you re successful; o If the claimant wins, you re likely to have to pay some or all of his/her costs as well as all of your own.