Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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By the 21st October the STP plans are due to be finalised which set out the way 44 local areas plan to make £14.9 billion worth of efficiency savings to be sourced locally in accordance with the 5 year forward view.
In order to make these savings it is clear that significant changes are going to be required in the provision and organisation of services particularly around long term care, and joining up the provision of social care, primary care and acute services. Proposals for major closures have already been announced in a number of areas.
On 15 September NHS England published guidance on the engagement obligation on NHS bodies in respect of each STP. This guidance confirms that at the current stage it may be helpful to have early discussions setting out the likely direction of travel for services and existing insight about the needs and views of patients and the public. This guidance confirms that STPs should be taken to each organisation's public board by the end of the year and also confirms that plans for engagement are expected to be published between late October and the end of the year.
Simon Stevens has suggested that each STP area should have developed potentially viable proposals on which engagement can take place rather than "flying kites on proposals that may not actually make any sense". This comment appears to suggest that rather than the STP setting out a single finalised proposal, areas should have either an early stage plan which can be developed or a number of possible options on which they can then engage. Whilst in some areas the STPs are building on proposals that are already subject to ongoing consultation, in other areas it is likely that the engagement process will be at the very beginning. Where a single proposal is presented in the STP there is a significant risk of challenges being brought on the basis of pre-determination or failure to consider reasonable alternatives. It appears from this that STP plans published this year must be considered as an initial proposal document which is subject to the outcome of any local engagement process rather than an agreed plan. When the STP is taken to public Board organisations will need to be very clear as to exactly what the decision is being taken in order that there can be no challenge of predetermination.
STP plans were intended to bring together all of the local health and government leaders and, according to Simon Stevens, to provide a space for, profound conversations about how each local area is to deliver the 5 year forward view, person centred care and make the necessary efficiency savings. It is not intended to be a reorganisation or new administrative layer but it is clear that the intention is for each of the organisations to work together collaboratively to reach a new solution. However, each STP and consequent delivery programme will be unique and may involve collaborations, federations, alliances or mergers - which go beyond the partnership boards which have traditionally overseen operations in the health and care sectors - they may even involve the creation of corporate vehicles. Putting in place the right governance arrangements will be critical to ensure access to Transformation funding and delivery of the plans.
There is no change in the statutory accountabilities so that each individual organisation will remain accountable. The intention is that the organisations will increasingly work together rather than be at odds with each other. However, it does raise issues as to how an organisation lawfully and effectively takes decisions that are both in the best interests of the individual organisation and the best interests of the local area, as these may not always be the same. Significant reconfigurations will need to be reviewed by Scrutiny Committees and where collaboration is proving difficult that may increase the likelihood of challenge through Scrutiny referrals. Already we have seen MPs voicing concerns about some of the proposals being cited in STP plans. Where all of the local organisations have not bought into the proposals it increases the risk of direct challenge.
We are very happy to discuss with you the risk of challenge posed by the drafting of your current STP and steps that you may take to mitigate. We can also advise on the extent of any engagement process that may be required going forward.
We can also provide advice on the different governance models that could be used in order to achieve the STP goals.