The Moore Adamson Craig Partnership Responds to the Consultation on the Regulations for LINks

To make sense of both the answers and the questions we discuss in this response to the 'Have your say' document, please visit and download the paper at www.dh.gov.uk/patientpublicinvolvement

Questions relating to 'Responding to requests for information made by a LINk' (see page 10)

Do you think that services-providers should have duties to provide information to LINks that go beyond the obligations imposed in the FOI Act 2000? If so, what should they be and why are the duties needed?

Yes. The FOIA should be simply the baseline and the minimum below which LINk rights must not slip. LINks must have rights beyond this to ask for and have information supplied from commissioners and services providers. LINks should of course be able to utilise the FOIA, but that legislation is not sufficient in itself for the purposes of LINks. There are two main reasons for this:

to restrict the information rights of LINks to the FOIA would be an implicit invitation to statutory bodies and other providers to obstruct requests for information by citing exemptions in the FOI legislation and it would be a burden on LINks to be pursuing multiple FOI requests across health and social care;

by restricting LINks to no more power in this regard than is available to an ordinary citizen, the message would be sent to the public that LINks was not meant to be an effective organisation and the incentive for involvement would be much reduced. Such counterproductive signals must be avoided at all costs.

Participants' perception of being able to make a difference through LINks is a crucial predetermining factor for their involvement. It is essential therefore that the information access rights enjoyed by LINks should be no less extensive than those currently enjoyed by Patient and Public Involvement Forums. To achieve this end, the Department of Health should use the authority provided under section 228(1)(a) of the Local Government and Public Involvement in Health Act 2007 to issue regulations (identical in intent to section 5 of the statutory instrument 2003 no. 2124) to impose a duty on commissioners and service providers

"to produce any information which appears to the [LINk] to be necessary for the effective carrying out of its functions. The [NHS body or local authority] shall comply promptly and in any event no later than the twentieth working day following the date the requirement was made."

It should be a presumption that LINk requests for information are reasonable and a rationale should always accompany such requests. The obligation should be on the body to whom the request is made to demonstrate why the request for information made by the LINk is not reasonable or cannot be complied with for some other reason.

The definition of services provider in the Regulations must encompass any provider of services for publicly funded users and patients as not all such providers will be public authorities and therefore subject to FOI legislation. This is another reason why the duty must be wider than simply the FOIA.

Questions relating to 'Responding to reports and recommendations made by a LINk' (see page 12)

Do you have any comments on these proposals?
Is the timescale of responding within 20 days appropriate?

We agree that the Government should place a specific duty, through regulations, on the commissioners of health and social care services to respond to reports and recommendations they receive from LINks. It should be made explicit in the interpretation of Section 229 that this extends to services which are commissioned from sources outside of the statutory sector, particularly from 3rd sector and private providers.

There should be coverage in the Regulations to take account of the merger of regulatory authorities in health and social care in the form of the Care Quality Commission and an explanation of what rights and roles LINks have in relation to the remit of that regulator regarding responses to reports and recommendations.

In some cases, 20 days will not be enough but the time limit should stand and if the response is to take longer, the organisation should say why and when the full response will be given.

Questions relating to 'Duty of services-providers to allow entry by LINks' (see page 16)

Do you have any comments on these proposals?
Are the premises that are exempted from the duty to allow entry appropriate?
Are there any further premises that should be exempted?
Do you feel the safeguards in place are proportionate? If not, why not? What do you think should be altered and why?

We agree that it is right for appropriately trained and supported members of LINks to be able to see and hear for themselves how services are provided. The draft regulations therefore should impose a duty on health and social care services providers to allow authorised representatives of LINks to enter premises that they own or control to observe the nature and quality of services and this must explicitly extend to premises of non-statutory providers where services are provided for publicly funded users and patients.

We agree with the exceptions to this as outlined in the consultation document, but there must be a mediation and decision mechanism to handle disputes between LINks and service providers about reasonable grounds for access. Normally this should be the local authority, but in the case of local authorities who are providers of services there is a conflict of interest and another mediator should be identified.

We do not agree that LINks representatives should not have the right to enter premises or parts of premises at any time when health and social care services are not being provided. Much could be learned about the environmental and other physical circumstances of such premises by visiting them when they were not in use and then comparing this learning with a visit while care was being provided. This opportunity should not be denied to LINks.

As in the previous section, there should be coverage in the Regulations to take account of the merger of regulatory authorities in health and social care in the form of the Care Quality Commission and an explanation of what rights and roles LINks have in relation to the remit of that regulator regarding rights of entry into premises.

Questions relating to 'LINk referral to an overview and scrutiny committee' (see page 18)

Do you have any comments on these proposals?
Is the timescale of responding within 20 days appropriate?

The Regulations must address the conflict of interest inherent in a LINk referring a matter to the local authority OSC when that authority is itself the commissioner and/or the provider of the service which is the subject of the LINk's concern. To address this, Regulations should require that both Health and Social Services OSCs recruit - using external independent processes - a number of "lay assessors" who are not themselves connected with LINk, a LINk Host, commissioners or providers of services locally- to sit with elected councillors to consider any matter referred by the LINk. Such assessors must be appropriately rewarded for their contribution.

We agree that regulations must cover both social care and health referrals to OSCs (by amending section 244 of the NHS Act 2006). In addition, an OSC receiving a referral from the LINk should be required to undertake a scrutiny of the service(s) identified in the referral and to say how it will undertake this within 20 working days of receiving the referral. (See our earlier comment about the time line proposed - the same arguments apply).

To reflect the convergence of the health and social care sectors and their regulation, separate Overview and Scrutiny Committees for health and for social services should be discontinued by the Regulations and provision made for their merger into Health and Social Care OSCs. This will reflect the remit of LINk and the way users and the public experience services and wish to have their say about them.

The Moore Adamson Craig Partnership LLP
19 December 2007