Where we are and what is still to be done?
Now that the Bill has finally made it onto the statute book, what are the key issues for NHS bodies in moving forward? There are key areas where there remain outstanding subordinate legislation, which is necessary to enable the system to work, or for Integrated Care Boards (ICBs) and others to understand the scope and limitations on their powers. There is also a range of guidance which is likely to be issued and which would need to be taken into account:
- NHS England needs to make rules as to the people for whom the ICB has core responsibility. Whilst the assumption is that this will replicate the basis of GP registration, there may be issues about the allocation of GP practices to ICBs, particularly where there are multi-site practices. It is also yet to be confirmed if the exceptions in the Standing Rules Regulations will be copied across or modified.
- Regulations may affect what functions can be put into delegated or joint arrangements under the new Section 65Z5, which may require changes to plans on the scope and extent of delegation, either to place or to provider collaboratives.
Key areas to finalise will be the place based arrangements. It is important for Clinical Commissioning Groups (CCGs) to fully engage with their Local Authority partners in respect of these arrangements as the legislation has not practically taken into account local government rules in terms of delegation and exercise of powers.
Given the timing, care will need to be taken as to whether decisions need to be made by the Council, Mayor, or Cabinet.
Issues for Providers
There are new controls over the use of capital, and duties over the common financial budget, which will require the new arrangements to bed in fast in terms of ensuring that the work done to date in managing finances is translated into a sensible discussion on how the finances with the Integrated Care System (ICS) are used, as well as the other resources.
Substantial changes may be required in decision making to enable collaborative working, whether through place or provider collaboratives, and this will require clarity of delegation and decision making rules. Guidance on the use of joint working and in particular joint committees will be needed, and regard is going to need to be had to the ways in which Local Authorities are structured and decisions are taken.
In some areas, progress has been slower due to delays in settling the size and shape of the ICB, and this does potentially create problems of arrangements needing to be put in place within 60 days. This is a challenge. Confirmation of a lift and shift of rights and liabilities from CCGs to ICBs, which is the expected route, would be helpful not just for CCGs but for their contacting partners and others. Preservation of actions taken to date for example in procurement processes or decision-making would also be sensible.
A key problem area is the issue of conflicts of interest where there are institutional conflicts built into the present system just as there were for CCGs and the conflicts rules to be adopted need to address these both at ICB and place level. To what extent can providers control the commissioning process or influence it in their own interests?
The position may be further complicated by the new provisions restricting those who can sit on the ICB and commissioning committees, so as to exclude those who may reasonably be regarded as undermining the independence of the health service by reason of their involvement in private health services “or otherwise” – see below. Assuming that being a senior executive in a private provider might be seen as undermining the independence of the health service, does that undermining of independence also apply to NHS trust / foundation trust executives, or indeed primary care representatives from private law partnerships? There is also the entertaining issue of what is meant by the “or otherwise” mentioned in the legislation - does that concept cover being a member of a political party or a trade union, for example?
All bodies will also need to work out the level of consideration needed to be given to the new statutory duty to take into account the wider effects of their decisions on health bodies, although it is noticeable that there is neither a parallel duty on Local Authorities nor a duty to have regard to the effect of decisions on Local Authorities. If the duty is intended to be effective in an integrated care system, surely it should not just apply to part of the players in that system?
What about NHS foundation trusts?
Foundations Trusts will ultimately experience a shift in the independence that they have come to enjoy over the past and will now find themselves subject to greater central control via new powers granted to NHS England. FTs will be subject to capital spending limits and the Act sets out new requirements in relation to their accounts, annual reports and Forward Plans, including the content of their Forward Plans.
On the positive side, FTs will now have wider powers of delegation and will no longer be restricted in delegating powers of decision making only to their own executive directors or a committee of the Board made up of FT directors. Instead, FTs will have powers to exercise functions jointly with others, including powers for joint working and delegation arrangements to joint committees, which should streamline collaboration and joint working governance structures.
FT directors will need to balance their existing statutory duties to their organisation and the maximisation of benefits for their members with new statutory duties to the system including having regard to the wider effects of their decisions in areas such as health and well-being, quality of services and efficiency and sustainability as regards the use of resources.
It is likely that these legislative changes will impact existing governance and constitutional arrangements and we expect FT Boards and Councils of Governors will want to revisit the content of their constitutions and standing orders to ensure compliance with the new regime.
Please contact Vincent Buscemi, Partner or Anna Davies, Senior Associate for more information or to discuss your questions or how we may be able to support you.