Dodgy legality of West Yorkshire and Harrogate Sustainability and Transformation Partnership’s Joint Clinical Commissioners Committee

This is part of an information note for campaigners that CK999 prepared before the first meeting of the West Yorkshire & Harrogate Joint Clinical Commissioners’ Committee on July 6th. Sorry for the delay in uploading it.

It is about what the Joint Committee is – and its seemingly dubious legality.

A bunch of CK999 and Hands off HRI campaigners attended the meeting – a report will follow shortly.

What is this Joint Clinical Commissioners’ Committee?

It is the workaround for the fact that there is no legal entity that can make commissioning decisions for the West Yorkshire and Harrogate Sustainability and Transformation Plan, so they have set up this Joint Committee.

This has proved quite contentious in at least the Calderdale Clinical Commissioning Group Governing Body, because it requires the Governing Body to delegate its decision making powers to their Accountable Officer, who represents them on the Joint Committee. The Governing Body Chair also tags along but has no decision making power on the Joint Clinical Commissioners Committee, as far as I remember. GPs on the Calderdale Clinical Commissioning Group Governing Body have been quite twitchy about all this and they probably have on other Clinical Commissioning Group Governing Bodies as well.

This Joint Clinical Commissioners’ Committee is a development of the 11 Clinical Commissioning Collaborative – but it is different because the Sustainability and Transformation Plan imposes a harsh financial control total on the West Yorkshire and Harrogate NHS and social care organisations as a whole region. By 2020/21, the West Yorkshire and Harrogate Sustainability and Transformation Partnership will have had to cut over £1Bn NHS and social care spending, compared with what it would have spent by then if these control totals weren’t in place.

So there will be issues in this Joint Clinical Commissioners’ Committee where one NHS area has to fight against other NHS areas.

Decisions are binding but this may not be lawful

The Terms of Reference in the Memorandum of Understanding says that

“The Joint Committee will make decisions by consensus of those Joint Committee Members present and voting at the meeting wherever possible. If a consensus decision cannot be reached then decisions of the Joint Committee will be made by 75% majority of those Joint Committee Members voting and present at the meeting.”

Section 6 of the Memorandum of Understanding says that  Joint Committee decisions are binding on the “parties”.

Section 12 says that if there are disputes that the “parties” can’t resolve or where the Joint Committee can’t reach a decision according to its Terms of Reference,  any “party” may refer the dispute to the Commissioning Director at NHS England and each party will cooperate in good faith the reach a resolution within 10 working days. If that doesn’t work any party can refer the dispute to an independent third party mediator and the written resolution must be signed by all parties.

Update: Since I wrote this info note for the 6th July Joint Clinical Commissioners’ meeting, Hackney Council’s Health in Hackney Scrutiny Commission has requested and obtained a summary of the legal advice received by City and Hackney Clinical Commissioning Group about collaborative commissioning arrangements for East London STP.  This legal advice:

“makes clear that decisions made by way of ‘collaboration’ cannot be binding on the partners nor can decisions be made by majority vote. This is a voluntary ‘agreement’ and is no basis for providing important NHS services.”

Local authorities excluded from Joint Clinical Commissioners Committee

There’s another issue too, because Sustainability and Transformation Plans/Partnerships are supposed to be about the integration of health and social care. Social care is the responsibility of local authorities and under the Better Care Fund local authorities and clinical commissioning groups have joint/integrated commissioning responsibilities. But there are no Councillors or local authority officers on the Joint Clinical Commissioners’ Committee.

Update: Since first writing this info note, the Local Government Association has published the results of their survey of local authorities. This shows that only a fifth of councils think the plans will succeed amid widespread complaints that they have been shut out of the process by the NHS; cultural clashes with a “command and control” NHS that does not trust elected councillors means that more local authorities believe the process is harming social care than helping it.

 

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