Naughty, naughty – breaching orders in the Court of Protection
Jun 6 2024
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The recent letter to councils and CCGs from NHS England and the Local Government Association about the Better Care Fund (BCF) formally Integration Transformation Fund requires some prompt action to get the initial building blocks in place to support the preliminary year arrangements for 2014/15. The letter makes it clear that NHS England is expecting local agreements on a five year strategy and a two year operational plan in order to implement the Fund at a local level, and there is lots of money at stake.
Councils will be very aware that to do all that is needed by the due date is by no means as simple a task as the letter might imply. By 15 February 2014 Health and Wellbeing Boards have to submit the template setting out their proposals and have this signed off by both the Council and the CCG, and then the Health and Wellbeing Board. Leaving to one side for the moment the interesting governance point of whether Health and Wellbeing Boards have power to sign off this document, the practical issues are immense. For example, how many meetings of their Health and Wellbeing Board do councils have planned between now and 15 February? Is one planned to discuss the proposals as they are developed and another (at least) for sign off? What if there are disagreements?
There is also the issue that when Health and Wellbeing Boards were set up, whilst integration of course featured in the Health and Social Care Act which established them, they did not know the details of their role in integration or how quickly that would come about. As a result, as shown in the recent Kings Fund Report, many Health and Wellbeing Boards tend to have a growing membership and a lack of emphasis amongst their set priorities on integration.
Nonetheless, by mid-February councils and their CCG partners have to have a project plan for the scheme and documented evidence showing how the scheme will relate to the six national conditions for BCF schemes (see below). They must also be able to demonstrate patient service user and public engagement and service provider engagement, all of which can take time. Since the Fund is essentially recycling money already in health budgets in one form or another, the explicit expectation is that this will have an impact on existing services and hence the need for provider engagement. Indeed, where the effect is the reduction or removal of existing services this itself will require consultation, and the need to consider the question of the Public Sector Equality Duty, as well as the need for best value consultation under section 3 of the Local Government Act 1999 Act as highlighted in the recent Barnet case.
Councils must work closely with their CCG colleagues through the Health and Wellbeing Boards to ensure that there are sensible and realistic plans for this. They need to take into account the requirement to meet outcomes and, as the NHS England documents indicate, the measures against which BCF schemes will be assessed and the conditional elements of the Fund released. These are likely to include:
If there are other local measures that you would like to put forward, you will need to ensure that there is adequate data now to be able to measure the impact of the change.
These are challenging objectives. The ability to devise a scheme within the timescale and to then implement it over the next two years is itself likely to stretch the capabilities of some CCGs and councils. Clearly NHS England intends to provide some support but for an early discussion as to how to structure schemes and to look at the engagement and Section 75 obligations that the schemes will need to meet, please contact one of our Health and Social Care Team below.