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Section 242 - the Duty to Involve

Background

The principle of Section 242 is that, by law, NHS Commissioners and Trusts must ensure that patients and / or the public are involved in certain decisions that affect the planning and delivery of NHS services. As a broad (and slightly imperfect) rule of thumb, such decisions usually fall under the remit of Section 242 if a service provision is changing from the service-users perspective. As an example, if a new service is being planned, or if an existing service its opening times, then these would almost certainly fall under the remit of Section 242; but a change of product supplier or contractor may not. It is difficult to give generic examples though and each case must be considered on its merits. If appropriate involvement is not undertaken, then Section 242 (commonly known as the "Duty to Involve") provides a legal recourse through which these decisions can be challenged and potentially overturned via a judicial review. While Section 242 has far-reaching implications, it is at heart about embedding good decision-making practice by ensuring that the service-user's point of view is taken into account when planning or changing services.

The Act

Section 242(1B) of the National Health Service Act 2006 as amended by the Local Government & Public Involvement in Health Act 2007, states that:

Each relevant English body must make arrangements as respects health services for which it is responsible, which secure that users of those services, whether directly or through representatives, are involved (whether by being consulted or provided with information, or in other ways) in:

(a)   The planning of the provision of services

(b)   The development and consideration of proposals for changes in the way services are provided

(c)    Decisions to be made by that body affecting the operation of those services

Subsections (b) and (c) need only be observed if the proposals would have an impact on:

(a)   The manner in which the services are delivered to users of those services; or

(b)   The range of health services available to those users

 

What is "involvement"?

In the statutory guidance that accompanies Section 242, "involvement" is defined as a continuum, from giving service-users information to full decision-making collaboration between the Trust and the public / service-users:

 Source: Department of Health, Real Involvement   

Different types of involvement use different techniques. For example, "giving information" might involve leaflets, radio adverts and public meetings; "getting information" might involve surveys, interviews and focus groups; "debate" might involve workshops or drop-in events; "participation" might involve service-users being on the management team. These methods are not by any means mutually exclusive and some service planning or change projects will incorporate a number of these techniques depending on the issue under consideration or the stage that the project is at.

The Trust is not bound to accept the outcomes of any involvement activity, but has to be able to demonstrate that these outcomes have been taken into account in the decision-making process. Similarly, a decision can be made not to carry out an involvement activity in relation to Section 242. However, this should be considered an exceptional situation and sound, documented reasons would have to be provided if this decision was challenged via a judicial review. 

Choosing an appropriate involvement activity

At UH Bristol it is currently up to a project team / lead to determine what is an "appropriate" involvement activity for their project (preferably with advice from the Patient & Public Involvement Team). Some of the things that should determine "appropriateness" are:

- Proportionality between the decision being made and the level of involvement activity

- Whether the service change being made is temporary or permanent

- The likely sensitivity of the group of service users affected by the change

- The risk of reputational damage to the Trust

As you move across the involvement diagram (above), the deeper the level of involvement. The temporary closure of a general ward due to infection control issues for example would probably fall at the left hand-side (i.e. information giving), whereas the permanent closure and relocation of a clinic providing a specialist regional service might require a full consultation process. These are often judgement-calls and so we encourage you to liaise with the Patient & Public Involvement team at the planning stage of your project.

There are some key elements of good practice for all types of involvement, such as:

  - involvement should begin at the earliest possible stage of a service planning or change project (and ideally right at the start) 

  -it should be proactive in engaging patients and the public, rather than assuming people will come to you

  - the needs of service users should be taken into account when designing the involvement process (e.g. special needs, accessibility issues, language barriers etc) to ensure that participation is as representative and open as possible

  -  there should be clarity about what is and isn't open to change as a result of the patient and public involvement activity

  - all relevant information should be shared with the participants so that they can understand the issues

  - it should be clear how the outcomes of the involvement activity have been taken into account in reaching decisions

  - all of the above elements should be clearly documented so that this information can be accessed should there be a challenge under section 242

The requirements of the Act vary considerably from project to project and ultimately the only way to determine whether "appropriate involvement" has been undertaken is via a judicial review! By following good practice however the chances of a case getting as far as judicial review are low and if it does then the outcome should be positive.

It is worth re-iterating that Section 242 is essentially about good decision-making. For example, it is hard to envisage a temporary ward closure happening without providing some information about this to patients and visitors; patient insight can be of immeasurable benefit in ensuring a new service is fit for purpose; if an issue is contentious then it pays to get the people affected engaged in the process at the earliest opportunity.

Support and useful links

The Trust's Patient & Public Involvement Team can provide you with advice on complying with Section 242 and we would very much welcome the opportunity to discuss the implications of the Act with you. In the first instance please contact the Trust's Public Involvement Lead, Tony Watkin (tony.watkin@uhbristol.nhs.uk / 0117 342 3729) or, if your project is in Children's Services, Sara Reynolds (sara.reynolds@uhbristol.nhs.uk / 0117 342 8158).

The statutory guidance for Section 242 can be found here: Real Involvement (statutory guidance for Section 242)

One toolkit for Patient & Public Involvement can be found here (but please do contact the Trust's PPI Team to discuss this further):

PPI Toolkit