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 UHBW 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 Patient and Public Involvement Lead, Tony
Watkin (tony.watkin@uhbw.nhs.uk
/ 0117 342 3729) or, if your project is in Children's Services,
Sara Reynolds (sara.reynolds@uhbw.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
