3 October 2019
The NHS Long Term Plan (LTP found here) published in January was clear that NHS England’s view is that the LTP could be implemented without legislative change. However, the LTP also noted that:
… our view is that amendment to the primary legislation would significantly accelerate progress on service integration, on administrative efficiency, and on public accountability.
NHS England was asked to make consensus-based recommendations on legislative change to support the LTP. There has been a period of consultation with stakeholders, and both NHS England and NHS Improvement have considered many thousands of responses from patients, providers, commissioners and professionals concerned with the NHS. On Thursday 26 September 2019 the Boards of NHS England and NHS Improvement met in common to approve the publication of “The NHS recommendations to Government and Parliament for an NHS Integrated Care Bill” which can be found here.
NHS England confirm, following consultation, that they have “clear and strong consensus about what this Bill should and should not contain”. The recommendations are for a highly targeted Bill, and not for top down administrative re-organisation. We summarise the 23 recommendations that have been made below.
There have been a number of difficulties created by the existing legislation governing the structures of the NHS. The current legislative framework is one inherently designed with a firm provider/commissioner split and with competition between providers assumed. These features of the legislation have in places caused difficulties with programmes of integration.
Other difficulties, concerning the delegation and double delegation of powers between organisations and even difficulties in simply forming joint committees have made integration (whether of the commissioning of care or in its provision) legally as well as practically complex. The reforms recommended by NHS England and NHS Improvement seek to address these points.
Whether all of the recommendations will, or indeed can, be implemented will be a matter for the Government, Parliament and, as the recommendation notes, Britain’s relationship with the EU. The changes proposed to the procurement regime will depend entirely on whether the UK is a member of the EU or, in the event of Brexit, the nature of any agreement covering procurement to which the UK and EU agree.
Summary of recommendations
In the next session of Parliament, the recommendations propose that a new NHS Bill should be introduced whose purpose would be “… to free up different parts of the NHS to work together and with partners more easily”.
- Removing the role of the Competition and Markets Authority (CMA) in mergers of Foundation Trusts;
- Remove the role of the CMA in relation to contested licence conditions and national tariff conditions;
- Remove NHS Improvement’s competition law functions – but retain the ability to set licence conditions on choice and competition;
- Removal of NHS healthcare commission from the current procurement rules (the National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013 (PPCCR) and Public Contracts Regulations 2015 (PCR)) and introducing a New NHS Procurement regime;
- A power to introduce standing rules promoting patient choice (effectively to retain elements of the PPCCR choice regime in a new format);
- Confirm (subject to the removal of the NHS from the procurement regimes) that only a statutory NHS provider may hold an Integrated Care Provider contract;
- Introduce a provision permitting joint decision making committees of CCGs with providers;
- Permit joint decision making committees of NHS Providers;
- Confirm that the Secretary of State may establish new NHS Trusts to deliver integrated care;
- An express power for NHS England and NHS Improvement to issue guidance on joint appointments across different organisations;
- Permit the designated nurse and secondary care doctor members of a CCG Governing Body to work for local organisations;
- Allow groups of CCGs to use joint and lead commissioner arrangements to pool funds and make decisions across all but a very few reserved functions;
- Allow CCGs to carry out delegated functions as if their own;
- Legislate to allow NHSE to delegate its functions to groups of CCGs, as opposed to individual CCGs (as at present);
- Enable NHS England to jointly commission specialised services, including provision for the pooling of budgets;
- Removing the current barriers about section 7A services (public health services) so that these are on the same footing as other NHS England functions so that these can be delegated or jointly commissioned with one or more CCGs;
Additional powers for NHS Improvement/NHS England
- Introduce a “reserve power” for NHS Improvement to set annual capital spending limits for individual NHS Foundation Trusts;
- To merge NHS Improvement (still technically the Trust Development Authority and Monitor) and NHS England into a single organisation;
Changes to the National Tariff
- Allowing the National Tariff prices to be set by reference to a formula or a fixed amount and for National Tariff Prices to be changed in year;
- Remove requirement for providers to apply to NHS Improvement for local variations to the National Tariff;
- Permit Section 7A public health services to be included in the National Tariff;
- Introduce a statutory duty for commissioners and providers to have regard to the “Triple Aim” aim when considering any aspect of health service provision and to collaborate with other bodies to promote the aim. The Triple Aim being “better care for all patients, better health for everyone, and sustainable use of NHS resources”.
A proposal consulted on, but not retained in the final recommendations, was that NHS Improvement would have the power to direct mergers or acquisitions involving NHS Foundation Trusts. The recommendation for a formal power to direct mergers or acquisitions is not pursued but the document notes that “there may be better, alternative ways to achieve organisational mergers where these are clearly in patients’ interests through existing regulatory powers and clarifying expectations on provider boards”.
Whether the recommendations become law or not, the continued progress of integration in the health and social care seems to be a certainty. Hempsons is working nationally on numerous integration projects and its experienced team can assist your organisation with its proposals.
Partner, Corporate Commercial
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