Statutory Residential Care Homes in Northern Ireland- Consultation and changes

27 August 2013

Author: Clare Bates
Practice Area: Healthcare
Sector: Healthcare

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The Health and Social Care Board has recently published a document setting out the way forward for engaging, consulting and implementing changes to Statutory Residential Care Homes in Northern Ireland.  The Health Board has announced that there will be two periods of consultation.  The first stage will run from October 2013 until January 2014 and will be concerned with the criteria which should be used to decide what changes should happen, and the timing of those changes.  Minister for Health Edwin Poots has stated that the “needs, wishes and concerns” of older persons “should be at the core of the process”, and that “there will be genuine consultation” so that their views will be heard. 

Effective Public Consultation

The Transforming Your Care agenda is likely to bring about radical change to the delivery of health and social services in Northern Ireland.  A wide range of individuals and organisations are likely to be affected by the changes, and it is likely that some proposals will be contentious.  Public Consultation is therefore vitally important in order to ensure that any decisions take into consideration the views of all affected groups.  In the context of the reorganisation of health and social services throughout the UK, Judicial Reviews have been sought in relation to inadequate consultation procedures.

Legal Challenges to Consultation Procedures

In Northern Ireland and throughout the UK there have been instances of successful challenges through the courts to inadequate consultation procedures.  In the first of two judicial review cases brought by Pharmaceutical Contractors Committee (Northern Ireland),[1] the Department of Health had unilaterally withdrawn a compensatory payment scheme for pharmacists without having negotiated a new contract and without having published a revised drug tariff.  The Court stated that procedural fairness required that the applicants should be consulted with as they were persons liable to be directly affected, and therefore should have been allowed to make representations on their own behalf.  In a further case arising out of some of the same issues, the Court held that the Department had failed to carry out sufficient investigations, and failed to carry out an adequate consultation process.[2] 

In England a judicial review challenge was recently brought by Save our Surgery Limited (an organisation set up with voluntary contributions by the public) in order to quash the decision of the Joint Committee of Primary Care Trusts in relation to the designation of specialised centres for paediatric cardiac surgery.[3] The consultation process was found to be flawed due to a failure to have regard to a material consideration in the decision making process.  It was found by the Court that there had been a failure to disclose the Quality scores of an Independent Assessment Panel which had been tasked with reviewing the existing providers of paediatric congenital cardiac services. 

Adequate Public Consultation

In order for public consultation to be effective consultation must take place at a formative stage in a decision–making process, consultees must be given adequate information in order to fully respond, and there must be adequate time given to respond.[4]  It is clear that adequate consultation which enables patients, carers, staff and service providers to fully participate in the decision making process is crucial in ensuring that the best decisions are made in relation to changes to Health and Social Care Services. 

The Process in Northern Ireland

The proposed changes to Statutory Residential Care Homes in Northern Ireland have already generated high levels of public interest. It remains to be seen if this forthcoming period of public consultation will be found to be effective and adequate public consultation or an attempt to engage with the public after the formative decision has already been reached.

[1] Pharmaceutical Contractors Committee (Northern Ireland) [2010] NIJB 3

[2] CPNI’s Application[2011] NIQB 132. 

[3] R (on the Application of Save our Surgery Limited) v Joint Committee of Primary Care Trusts and Newcastle Upon Tyne Hospitals NHS Foundation Trust [2013] EWHC 439. 

[4] Re Law Society of Northern Ireland’s Application [2004] N|IQB 48, R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213. 

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