Practical and Legal Guidance for Assessing Capacity
Jul 20 2023
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The Department of Health has now made the first set of regulations governing the activities of Clinical Commissioning Groups which focus very much on the authorisation process. The National Health Service (Clinical Commissioning Groups) Regulations 2012 cover a number of different points.
The Department of Health has now made the first set of regulations governing the activities of Clinical Commissioning Groups which focus very much on the authorisation process. The National Health Service (Clinical Commissioning Groups) Regulations 2012 cover a number of different points:
Throughout the regulations it is apparent that with the shift away from a model of direct DH or Secretary of State intervention comes a much more detailed set of rules and regulations, so that much of what was previously dealt with by way of departmental instruction becomes formal delegated legislation. This may not lead to significant greater freedoms and potentially increases the risks for NHS bodies.
In terms of names, CCGs are required to meet three prescriptive requirements, two of which are relatively simple. They must start with “NHS” and end with the words “Clinical Commissioning Group”. The third element is a geographical reference which must fairly and accurately represent the area specified in the constitution and can be either a place, geographical feature or area named on a map in general circulation or which has a name in common usage in the area or relate to a centre of population, an administrative area or electoral district. There can be modifications such as compass references. Purists will be pleased to see that you can also include any necessary punctuation (reg.5(6)(c)).
The regulations require the NHS Commissioning Board to publish procedure for applications for the establishment, constitutional variation merger or dissolution, and it must provide for communication at all stages to facilitate clarifications either way and indeed for the applications to be amended to meet the Board’s concerns. The Board’s decision must be in writing and with reasons.
Schedule 1 sets out a series of factors to be taken into account in considering applications which does to some degree tie the Board’s hands around the structure of the application, in particular over boundaries and where the most persons to be provided with primary medical services by a CCG member in fact reside in the area of the CCG. There are specific factors relating to applications to vary the CCG constitution which, whilst relevant for major change, do appear to raise some concerns given the detail required in CCG constitutions and the frequency with which minor modifications may be necessary.
Again, the regulations are quite prescriptive. They require as members:
Neither the designated nurse nor the Secondary Care specialist can be a partner, employee or member of a member practice forming the CCG, nor an employee of a provider other than the providers who only hold that position as a result of patient choice or a specialist individual care package. In addition, the Secondary Care specialist must be an individual who either is, or has been within the last ten years, on the Specialist Register at the GMC, held a post as a Consultant in the NHS and is not included in the General Practitioner Register.
The regulations also provide in detail about who may or may not be a lay member; specifically they provide that the Chair may not be the Accountable Officer, Finance Director, the Registered Nurse, Secondary Care specialist or the Lay Member with responsibility for finance and audit. Where the Chair is a healthcare professional, the Deputy Chair must be a lay person. This may give rise to difficulties for CCGs who have sought to distinguish between Deputy Chairs who are the lay person who steps in where there is a conflict of interest and Clinical Vice Chairs who run the governing body in the absence of the Chairman. On the face of it, this approach is not compliant with the regulations.
Disqualifications for lay members are quite extensive and include being:
Also ruled out are individuals who provide services as part of the NHS for the CCG or pursuant to arrangements made by the Commissioning Board or any local authority in pursuance to their social services functions.
CCGs will need to consider carefully whether existing proposed lay members are actually in a position to take up their post. In particular, the bar on being a member of an NHS Foundation Trust is quite far reaching and will capture a significant number of people although the benefit to the NHS of ensuring the separation seems unclear. The regulations also include a much more detailed set of disqualifications for anyone from being a member of the CCG governing body, although these are not dissimilar to current provisions relating to disqualifications from PCT boards or professional executive committees.
In contrast the requirements on audit and remuneration
committees are limited: no member of the governing body apart
from a lay member may be chair of the remuneration committee, and
the audit committee must be chaired by a lay person (not
necessarily a Lay Member) with appropriate
experience, and cannot include either the Chair or the
In all, whilst the development of the detail is welcome, it is clear that the approach of the legislation is one of detailed rules rather than establishment of principles and allowing the organisations the flexibility to develop their own models.