UNISON, the UK’s largest public service union, today started legal action against the Secretary of State for Health, challenging his refusal to consult the public on proposals in his White Paper, Equity and Excellence: Liberating the NHS.
The proposals would bring about the most fundamental changes to the way the NHS operates since it was created.
The day after the White Paper was published, NHS Chief Executive Sir David Nicholson wrote to all NHS chief executives instructing them to start implementing the proposals “immediately”. UNISON wrote to Sir David saying this instruction was unlawful.
The union argued that no steps should be taken to implement the changes in any way, until the public have had the opportunity to consider and comment on them.
Sir David said he would write again to NHS chief executives reminding them they should not implement the White Paper proposals until the consultation period had ended.
However, he also said the consultation was limited to how the proposal should be implemented not on whether the proposal should be implemented – i.e. the public’s view on the White Paper proposals themselves was not being requested and would not be considered.
The letter provoked an angry response, from Karen Jennings, UNISON Head of Health. She said:
“I find it incredible that the NHS Chief Executive would say he believes there is no legal duty on the Secretary of State to consult on the merits of the proposals in the White Paper.
The White Paper contains sweeping changes to the NHS and how it should be run. The NHS Constitution enshrines the principle that the public, staff and unions have an absolute right to be consulted. And that means not only on how the proposals are to be implemented, but also whether they should go ahead in the first place.
The Department for Health’s refusal to recognise this clear and important legal duty leaves us no option but to issue legal proceedings as a matter of urgency. “
Notes to the Editors:
1. In its judicial review application to the High Court, UNISON argues the refusal by the Secretary of State to properly consult on the White Paper proposals are unlawful because:
(i) there are promises, including in the White Paper, which give rise to a legitimate expectation that the proposals would be subject to public consultation;
(ii) The Partnership Agreement signed between the Department of Health, NHS employers and NHS trade unions expressly commits the Secretary of State to early discussion and dialogue on NHS policy and priorities;
(iii) the NHS Constitution provides the public with the right to be consulted; and
(iv) section 242 of the NHS Act places a legal duty on all NHS bodies to consult on proposed changes to their services.