News Update
Have things really changed?

17 Jun 2011

Ross Clark, Partner and Head of Corporate at Hempsons explains...

Well, now we have it. This week in a showcase press conference (14 June), David Cameron, Nick Clegg and Andrew Lansley stood shoulder to shoulder informing us how much they have changed their proposals for the reform of the healthcare system as a result of the listening exercise.

But have things really changed? A closer read of the government’s changes in response to the NHS Future Forum recommendations reveals that, for GP Commissioning Consortia (GPCC) now rebranded as Clinical Commissioning Groups (CCG), there are few really significant changes:  

1. Membership

The only members of CCGs will still be GP’s. Much was made of the involvement of at least one registered nurse and a secondary care doctor but this is on the governing body of the CCG and not its membership. Accordingly, the name has changed to imply a wider 'membership' but the reality is no change here.

2. Geographical boundaries

The boundaries of CCGs should not normally cross those of local authorities, but they can do so, if they can demonstrate a clear rationale in terms of benefit to patients, for example to reflect local patient movement.

Very few shadow and pathfinder GPCCs proposed crossing PCT boundaries and the Bill required that the NHS Commissioning Board agreed (as part of the Constitution) the area of the GPCC. Accordingly, it is unlikely that this change will have a material effect on established GPCCs.     

3. Name

CCGs will be expected to have a name that uses the NHS brand and has a clear link to their locality. Again, in most cases a locality name was used but the required use of the NHS brand is a clever move to suggest a truly integrated and unified health service. However branding and ownership are not the same thing.

4. Commissioning responsibilities

The commissioning responsibilities of CCGs have been expanded to include all urgent and emergency care within their boundaries, and are also responsible for any unregistered patients who live in their area. In other words, CCGs will be responsible for their whole population not just their registered patients.            

5. Integration

CCGs will have flexibility to work in partnership when commissioning services, for example with other groups, local authorities and the NHS Commissioning Board. But as public bodies, they will be unable to delegate their statutory responsibility for commissioning decisions to private companies or contractors.

There is no difference here to the current provisions outlined in the Bill. Do note in particular that although the statutory responsibility of a CCG cannot be delegated, the carrying out of the principal commissioning functions can be.

The proposed 'clinical senates' (consisting of doctors, nurses and other professionals) will give expert advice, which the Government will 'expect' (but not require) CCGs to follow.

6. Governance and accountability

As noted above, membership of CCGs will remain in the hands of GP's but the governing body of the CCG (the body delegated by the members to have day to day control of the functions of the CCG), will have to include at least one registered nurse and one doctor who is a secondary care specialist.

Every CCGs governing body must make decisions in an 'open, transparent and accountable' way. To enhance transparency and accountability, governing bodies will be required to meet in public and publish their minutes and details of contracts with health service providers.  Being required to meet in public is a significant change to the Bill and will cause some concern amongst GP's. However, as with Foundation Trusts, provisions should be included to permit the governing body to consider confidential or sensitive issues in private.

Another important change is the requirement for at least two lay members on the governing body.  One will have a lead role in championing patient and public involvement whilst the other will be responsible for overseeing key elements of governance such as audits, remuneration and managing conflicts of interest. One of the lay members is also to undertake either the role of Deputy Chair or Chair of the governing body. Although not set out in the Bill, it is good corporate governance to include 'non-executive' members and they can have an important function in specific areas, such as conflicts of interest and so this change should cause little concern.

7. Choice and competition

 The Government is maintaining its commitment to extending patients' choice of 'Any Qualified Provider' but has delayed the start of this until April 2012 and limited its application to services covered by national or local tariff pricing. This will ensure competition is based on quality. However, that is consistent with the previous 'Any Willing Provider' as AQP / AWP only really works with less complicated, repeat, functions where tariff pricing is also used. 

A great deal of concern has been expressed about competition, the role of private providers and keeping the NHS in public hands. 

As a result of the changes, Monitor will no longer be required to 'promote' competition (the only real way to do this is to exercise reverse discrimination to ensure a decided outcome takes place) but will instead focus on preventing abuses. In addition, the existing competition rules for the NHS introduced by the last Government (the Principles and Rules for Co-operation and Competition) are to be retained and European procurement law will continue to apply.

Accordingly, although there are to be additional safeguards against price competition and 'cherry picking' (which would be challengeable in any event), there is no real change in approach here and CCGs will remain at risk of challenge if they decide to exclude a private provider as a matter of principle from a commissioning opportunity.

Competition will be on the basis of quality not price, and CCGs will be required to follow 'best value' principles when tendering for non-tariff services, rather than simply choosing the lowest price. However, price is and will remain an inherent component of 'value' and remember also that CCGs will also have a duty to operate effectively, efficiently and economically, which also implies a requirement to balance cost against outcomes when determining best value for public funds.

8. Timetable

Primary Care Trusts will cease to exist in April 2013. However, clinical commissioning groups will not be authorised to take on any part of the commissioning budget in their local area until they are ready and willing to do so. If they are not ready, the NHS Commissioning Board will continue the commissioning functions, under the direction of a 'shadow' commissioning group.

Accordingly, whilst the definitive timeline in the Bill has gone, there is no doubt the NHS Commissioning Board will be working hard to develop fully operational commissioning groups and to 'encourage' CCGs to take over commissioning responsibility, so that a two-tier system of commissioning in the NHS is avoided.

So, there we have it. A genuine listening exercise, a lot of politics but few real changes of substance for GP's.

Author Details

Ross is a Partner and Head of Corporate at Hempsons.

His main focus at present is on the emerging GP Consortia and is assisting a number of Consortia (including Pathfinders) on the key issues they face in moving towards formal establishment under the Health and Social Care Bill (the drafting of constitutions compliant with the requirements of the Bill, concerns that TUPE may apply to transfer staff to Consortia, risk sharing between the Members of the Consortium, etc).  He is also assisting a number of GP provider organisations. 

Author

Ross Clark
Partner
t: 01423 724012
e: r.clark@hempsons.co.uk
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