The Commission Pages

3.1 Community Health Councils

3.1.1 Community Health Councils (CHCs) were established in 1974 as the champion of the patient at local level; the means of asserting the public interest in health, as seen by users, to the relevant health authorities. They were inventedestablished because there was no appetite to have direct elections to run health authorities, or to allow any part of the NHS to be run by elected local authorities;. Instead of being arather than structural change to promote accountability CHCs were bolted on to the existing structure. They are now the only quasi-independent voice inside the NHS.

3.1.2 Every health districtauthority has a statutory obligation to have a CHC as its watchdog. There are 206 CHCs in England and Wales. Their membership is voluntary and unpaid, with one half being nominated by local authorities, a third elected by voluntary organisations from among their members and the remaining sixth appointed by the Secretary of State. CHCs have the right to visit NHS premises at any time of day or night and to have their reports on their visits responded to by hHealth Aauthorities and trusts. They have a right to be consulted by Hhealth Aauthorities on any substantial variations in service provision. They advise hHealth Aauthorities on what they consider to be the impact of their decisions and, if they object to those decisions, their objection has to be referred through the Regional Office of the NHS Executive (NHSE) to the Secretary of State for his/her adjudication. Generally located in a conspicuous high street site, they have developed a useful and important role in both proffering feedback to health authorities and helping individuals with their complaints.

3.1.3 However there are severe limits to their effectiveness. When they mount a challenge to the health district they have no funds or legal indemnity to underpin their actions. The business of referring disputed decisions to Whitehall for adjudication by the sSecretary of sState is time-consuming and opaque. CHCs do not see, for example, the representations made by NHS officers in any disputed referral; and when rulings are made it is not clear why. Although some CHCs are vigorous in their watchdog role, others have become little more than public relations agencies for the health districtsauthorities. As currently organised, CHCs, while they are formally best placed to play a role in closing the accountability and credibility gap, are falling short of their potential. Some are excellent. Some others are inadequate. The CHC leadership is keenly aware of the shortfall, and there have been recentongoing initiatives to promote internal and external audit, and to set demanding performance standards. But even the position of the central co-ordinating body, ACHCEW is anomalous; it has no powers to police standards and can only advise rather than instruct.

3.1.4 The autonomy of individual CHCs means that standards vary builds in across the country. They are not accountable for the way they take decisions. Review and performance appraisal is variable. Training is weak, because it is not obligatory. The lack of consistency is exacerbated by the awkwardness of the management establishing arrangements to which CHCs are subjected: Regional Offices of the NHSE are their establishing authority and there are eight Regional Offices across the country, all with different ideas as to how CHCs should be managed.

3.1.5 The right to consultation on substantial variations in service has, over the years, become a mockery. No precise definition of what the word 'substantial' means in this context has ever been forthcoming. At one time it was defined in the House of Commons by the Secretary of State as what CHCs themselves considered 'substantial': latterly, health authorities have made the decisions as to what is or is not 'substantial' and consulted or not consulted on that basis. In addition, the statutory duty to consult CHCs lies with Hhealth Aauthorities. It is for Hhealth Aauthorities to decide whether or not to consult on substantial changes proposed by trusts, not the trusts themselves. This makes for confusion and can lead to frustrating buck-passing.

3.1.6 The already very limited statutory rights of CHCs have been eroded over the past decade by changes in the NHS, which have not been matched by changes in legislation affecting CHCs. For instance, CHCs could by right visit and monitor long-stay hospitals: they now have to negotiate visiting and monitoring rights in respect of the residential and nursing homes by which the hospitals have been replaced - and they are not always successful. Much of the recuperative and rehabilitative work, which at one time was carried out in acute hospitals, is now done in patients' homes and is not independently monitored. CHCs have traditionally had observer status with speaking rights at health authority meetings: they have no such status, as of right, in respect of the new purchasers, the Primary Care Groups.

3.2 Accountability: rights to consultation

3.2.1 If the NHS is to be responsive to the needs of the public, then the public must be involved in the planning and development of services. It follows that consultation with users and potential users of the NHS should be an integral part of managing the Health Service. On paper consultation appears to be straightforward. The definition is uncontroversial: "the communication of a genuine invitation to give advice and a genuine receipt of that advice"_. But whilst there are examples of good practice some health authorities are reluctant to consult on their plans, and in some instances the consultation exercises are clearly inadequate.

3.2.2 It sometimes appears that health authorities have reached a decision before considering responses to a consultation. CHCs, for example, are sometimes presented with a single 'option', suggesting that the health authority has already reached a decision. There are sometimes attempts to implement changes that have not been laid out in consultation documents. And health authorities do not always ensure that documents relevant to a consultation are available at the start of the consultation period; what is defined as a substantial change to services, as we argue above, allows wide discretion in deciding what should and should not be consulted upon.

3.2.3 The introduction of the internal market has caused further problems in the consultation process. There is no statutory requirement for trusts to consult when they plan substantial variations in services. In short, consultation is ad hoc and discretionary.

3.3 Accountability: NHS complaints procedures

3.3.1 For the individual patient the complaint procedures represent the most immediate and tangible means of holding the NHS to account. In 1997/98_ the total written complaints are 88,757 for hospital and community health services and 38,093 for family health services.

3.3.2 The complaints procedure divides into two distinct parts. 'Local resolution' where the emphasis is on resolving the complaint on the spot or within 20 working days by the provider of care. If this process of local resolution is unable to resolve the complaint then an Independent Review panel can be set up if an appointed convenor agrees that it would be appropriate to do so. The Convenor is a non-executive director of the NHS trust subject of the complaint (or a non-executive director of the relevant health authority for complaints against primary care services). The Panel Chairs are appointed by the relevant Secretary of State. The third member is also appointed by the Secretary of State, except in the case of NHS trust Panels, where the relevant health authority makes the appointment. Should the complainant still remain dissatisfied after the findings of a Panel or if the complainant wasis refused a Panel, they can ask the Health Service Ombudsman to investigate.

3.3.3 In 1997/98 there were 3,261 requests for Independent Review Panel, and 679 Panels established. In the same year the Ombudsman dealt with 964 complaints that had been considered by a convenor and refused a panel or had been through an Independent Review Panel.

3.3.4 The problems are legion. It is not clear that either convenors or the review panel are genuinely independent, with many convenors seeing their role as smoothing ruffled feathers or negotiating an amicable settlement. Costs are high, and the insistence on making a complaint early deters many complainants. One cCommunity hHealth cCouncil in its evidence commented that: "Independent reviews are very costly - very difficult to set up, and get the correct panel of experts etc., within extremely tight deadlines. Because of this, patients are being pushed to go back again and again for further local resolution in the hope that this will eliminate the need for independent review".

3.3.5 The NHS complaints procedure is even weaker than that for local authorities and social services. There are no rights to complain about entitlement to services. The complainant in the NHS cannot ask for a review panel to be convened. Instead he or she can only appeal to a convenor whose decision it is whether such a panel should be convened. The convenor is not independent, as it must be the case in a comparable review by a local authority. The independent review panel convened by the convenor has a lay chair appointed by the NHS Regional Office. No panel member should have any past or present links with the trust/health authority establishing the panel. And then , to add insult to injury, the decisions of the review panels are also not binding on the trust or health authority. In sum the whole apparatus from the appointment of regional health authorities through to the minutiae of complaints procedures defines the NHS as Britain's least accountable public institution, even though accountability in the hHealth Service accountability is more important than in any other department of government.