Practical and Legal Guidance for Assessing Capacity
Jul 20 2023
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The guidance document approved at the November 2020 board meeting sets out (amongst other things) expectations for the governance to be put in place for ICS for the coming year in preparation for the move to some form of statutory status to be dealt with by legislation for April 2022.
This should have the function of enabling collective decision-making and responsibility. They should already be in place, but as the ICS develops in the context of the local arrangements it may be worth reviewing the terms of reference to ensure it properly reflects both the needs of the local system, and properly reflects its status. The Board is a group of individuals exercising delegated powers in reaching agreements in its decision making capacity, and reflecting the constitutional position of the different partners. This is particularly important with local authority members where there are different rules around how decisions may be taken.
ICS may wish to consider how effectively the links with Health and Wellbeing Boards operate, and how the ICS manages the relationship between the Joint health and wellbeing plans, and the NHS system planning functions.
Given the requirements for quality governance it may be worth considering whether the private sector acute providers should be engaged at this level. This would reflect a post Paterson joined up approach to managing quality issues in acute care.
The NHSEI approach has emphasised the development of ‘Place’ as a key building block of the ICS. This makes the assumption that in most ICS this will be a smaller area and population than the ICS as a whole, although given the assumption that for most areas this will be upper tier local authority it may not be separate for some rural areas. The role definitions of place also seem to exclude acute hospital care which is assumed to be a system wide element. We would suggest that the option of involving the acute providers at least in part will be helpful where patient pathways cross over between the core place based offer and acute provision.
There is a requirement for place based decision making, which may create some local issues around the consistency of place and PCN boundaries, and in decision making on behalf of primary care, including non medical primary care.
ICS should review the local arrangements with local authorities for joint decision making, as these may need to reflect the development of place based groupings.
It is unclear whether there is an expectation that the membership of provider collaboratives will include the private sector, and indeed there are competition law concerns that will need to be addressed. However, recent experience has shown that effect i.e. co-operation between NHS and private sector providers can assist in a more efficient use of resources to deliver improved services to patients particularly in the context of the need to address treatment delays due to the requirements of the Covid pandemic.
Again, how the collaboratives operate and take decisions together should be defined, although it is likely that a material degree of flexibility will need to be built in. It is likely that there will be more than one provider collaborative in any ICS, and how these are represented in the ICS partnership board will need to be considered.
This is largely unaffected in terms of the current legislation, but it is important that the internal governance of organisations properly reflect the involvement with the ICS in its various levels, and that the Boards or Governing bodies of the individual organisations have proper oversight over what is delegated. This will involve accountability back to the parent organisations, at least for the coming year.
All organisations in the ICS will also need to understand what commitments to other parties will be in place so that these are reflected and respected in each organisation.
In addition there will be a need for the individual organisations to work together where their obligations overlap particularly in managing system finance, which is always difficult, and often exacerbated by the different financial and liability models in different types of organisations. Private sector bodies have to have regard to insolvency rules in a way that statutory bodies do not and when money is tight this may affect behaviours in joint decision making.
Service development can also put strains on the relationship between parties through the effects of change on individual organisations, and whilst a focus on the needs of the population can help, the practical consequences and implications for organisations and staff need to be considered as well. In all of this there is a danger of unintended consequences undermining the intended outcomes. An effective escalation process through the ICS system may assist here, but it is important to recognise the pressures that other partners in the system are facing.
ICS partners will need to find the time to ensure that their systems and arrangements are sufficiently robust and clear to support the progress of the local system, and the development of services.
If you would like to discuss these issues further please contact David Owens.