Naughty, naughty – breaching orders in the Court of Protection
Jun 6 2024
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The Health and Social Care Bill has received Royal Assent and is now the Health and Social Care Act. Clinical Commissioning Groups (CCGs) are to be the new commissioners in the NHS. They will be furnished with substantial powers and budgets to spend on the arrangements for care for their patients and for those whom they are responsible. The strapline for the White Paper which first envisaged the new commissioning landscape was "liberating the NHS", but how far in practice this is the effect of the Health and Social Care Act remains to be seem.
Commissioners will need to understand that whilst the new structure may have been brought about to liberate the NHS, there are a number of areas of constraint on them and the CCGs will need to work within these constraints in order to be effective commissioners.
There are the basic public law constraints on any body taking public decisions which can be subject to Judicial Review challenge. Such challenges can be based on:
There will be extensive regulations under the Act articling in particular the system rules and regulations which will cover the extent to which, and the nature of, the procurement obligations that will be imposed on CCGs.
In addition to the current range of obligations, including the equalities duty and the requirements for consultation which will also apply to CCGs, there are a range of new statutory duties that have been liberally applied to CCGs and others and which potentially create a whole new set of pitfalls for the bodies as they seek to develop and reshape services.
Finally, there are the relationships with the Local Authority Health and Wellbeing Board and the ways in which the joint health planning process interrelates with the CCGs own policy development.
Below we focus on the new duties and how they can potentially open up issues for the CCGs both for wider health planning decisions and the individual cases that they will be called upon to decide.
With great power comes great responsibility – the new duties
The key new duties are set out in the new sections inserted into the NHS Act 2006 as sections 14P-14Z2. These set out the duty of the CCGs to:
Taken individually these all seem sensible obligations but there are a number of potential pitfalls.
The starting point is the range of different levels of the nature of the duty such as:
Increasingly this will encourage ever longer papers to governing bodies so that the authors can demonstrate they have covered off all of these duties so as to limit the grounds of challenge to the eventual decision. More seriously, there is a significant risk that the duties can set up conflicts, either between these new duties, or with existing obligations.
For example, take the situation where a CCG is considering a proposal for service change to centralise a service. They are doing this in accordance with Royal College recommendations to improve quality of services through greater throughput in a single unit with better consultant cover. This qualifies under the duty to exercise functions with a view to improving quality but, as is well known, such proposals can be controversial with the public. How does the duty to promote involvement of the patients in the decision play into this? Even the definition of quality includes the patient experience so travel (and other factors) may be relevant. Does such a move reduce choice or indeed fail to meet the obligation to have regard to the need to reduce inequalities of access?
In another context promoting choice is not always consistent with promoting integrations by their very nature.
It may also be more difficult to decline new or innovatory techniques - how far does the duty to promote innovation go, particularly when tested against the duty to promote the use of research based evidence in health services?
These examples underline that, irrespective of the difficulties that NHS commissioners have faced over the years in managing challenges over service change and the introduction of non standard therapy, the issues are just getting more difficult at a point at which the CCGs have to take over as relatively untested organisations.
CCGs will need support from skilled advisers who can understand theses issue and help them to take robust decisions in their new role as the commissioners for health services across England otherwise there may be troubled times ahead.
We have looked beyond the Act to the post-reform landscape, which is indeed a changing one, where untested CCG will soon have great power and budgets. We have been working with existing commissioners, incoming CCGs and other organisations effected by the changes ahead to advise on issues arising and ahead of them.
Our commercial team would be happy to assist you with understanding the Act reforms, the implications it will have for existing and incoming commissioners and how best to prepare. We can also provide training and development support for incoming commissioners to help prepare them for the new landscape.