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With the Health and Care Act on the statute books including key provisions relating to the dissolution of Clinical Commissioning Groups (CCGs) and establishment of Integrated Care Boards (ICBs), NHS Trusts and Foundation Trusts are continuing their preparations for operating in the ‘new’ world in which, according to the Integrated Care System (ICS) Design Framework, providers will ‘increasingly be judged against their contribution to the objectives of the ICS’. While providers may not be subject to such obvious upheaval as CCGs, there are many factors to consider which require thought and planning.

Some of these, such as input into the establishment and operation of the ICB/Integrated Care Partnership (ICP), involve entirely new concepts, whilst others, including the development of more extensive provider collaboratives and contribution at Place, will be more familiar. Here Hill Dickinson considers five key areas which will no doubt be occupying NHS providers in the run up to the expected July 2022 in force date, and beyond.

To hear more of our reflections on our Place work and future priorities for Places, you can sign up to attend our webinar on 14 June 2022 here.

  1. Input across the system Both the legislation and guidance make clear that NHS providers are expected to input in different ways into the full range of bodies / partnerships to be established across each system. In some instances, that involvement is prescribed; in others, it has been left intentionally more flexible, subject to local arrangements. From a purely practical perspective, understanding, mapping and implementing that involvement can be complex and time-consuming, including in terms of the workforce commitment required to do so. For some providers, this is complicated by the fact that they straddle more than one ICS. The involvement of NHS providers across the new systems will include:

ICB - the Act sets out that while individual providers will not have a membership seat at the ICB table, they are required to, jointly with other providers, nominate a ‘partner member’ to sit at it. This partner member will not be a representative of the provider organisation or sector but will be required instead to bring their ‘perspective’ to the ICB. The person holding this role is expected to be a senior Trust / Foundation Trust individual, likely a Chief Executive. Providers are also designated as ICB partners with responsibility for helping to prepare the ICB Forward Plan and Joint Capital Resource Use Plan. ICP - guidance on the role of the Integrated Care Partnership (ICP), another new concept within the system, includes NHS Trusts / Foundation Trusts on the ‘illustrative list’ for ICP membership and engagement. Exactly where and how providers are expected to be involved with this body, referred to as a joint committee between the ICB and local authority tasked with preparing the Integrated Care Strategy setting out how assessed needs will be met by the exercise of functions of the ICB / NHS England or local authorities, is not prescribed and is subject to local determination. Place - we have written more generally about the concept of Place in a separate article and this concept is likely to be more familiar to providers, albeit not without its challenges, in view of the establishment over recent months of Place-based partnerships and considerations as to the governance models for these partnerships and the role of NHS providers within these partnerships. The involvement of NHS providers in Place arrangements will continue with the development of Place-based partnerships, albeit, again, in a largely non-prescribed way which will vary between systems. The challenge for NHS providers currently is understanding their membership of and role within the Place-based partnership, particularly in terms of how and whether ICBs and local authorities will in future commission through Place, through provider collaboratives, or direct with individual providers, and which of their functions, if any, providers may choose to delegate to Place. The development of Place arrangements and the role of NHS providers within these arrangements is likely to be something that will develop in time over the next few months and even years as the Act comes into force, ICBs are established and decisions are taken as to commissioning and provider functions at either a system level or Place level. Provider Collaboratives – all acute and mental health trusts are required to be a member of at least one provider collaborative by July 2022, with community and ambulance trusts asked to participate in collaboratives where this is deemed beneficial for patients and makes sense for the providers / systems involved. For some providers, formal collaborations with other providers will already be familiar and a number of provider collaboration arrangements will already exist across the country. However, for others, it may be new, and the idea of entering into formal and contractual collaborations with other providers may be a daunting and unwelcome concept, particularly when the legislation establishing NHS Trusts and Foundation Trusts as independent, sovereign organisations subject to individual powers and duties is not due to change.

  1. Potential for conflict Executives of NHS Trusts and Foundation Trusts will remain accountable to their Boards for the performance of the functions for which their organisation is responsible, and Trusts will remain as sovereign NHS organisations with statutory powers, duties and functions. However, in the new world, Trusts will also be under a duty, jointly with the ICB, to act with a view to ensuring system financial balance and, pursuant to the Triple Aim, which will be enshrined in statute via the Act, must also have regard to the wider effect of their decisions on (a) the health and wellbeing of the people of England; (b) the quality of services provided to individuals; and (c) efficiency and sustainability.

With the adoption of so many roles across the system (as referred to above) and both organisational and system duties / responsibilities to consider, there is clear potential for providers, their Board members, officers and employees to find themselves in a position of actual or potential conflict when discussing or taking decisions on matters within different constituent parts of the overall system. This has implications for both individual providers, and the system bodies and partnerships in which the provider is involved.

There is no easy way of removing this potential for conflict – with the desire for closer collaboration and integrated working across the system comes challenges such as attempting to avoid and/or managing actual or potential conflicts of interest - but providers will need, at every step of the way, to remain cognisant of that potential, being clear on who they are representing in a particular role, declaring conflicts of interest and abstaining from discussions and decision making where considered necessary, carefully balancing organisational interests against collective and collaborative aims. NHS conflicts of interests’ policies will remain extremely pertinent - new/updated NHS guidance in this area is expected to be issued over the coming months.

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Date: 13 May

Posted in News on May 13, 2022

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