Councillors’ committee must enforce public consultation on dodgy Thames Valley NHS shake up

Oxfordshire Keep Our NHS Public has written to the Chair of Oxfordshire Health and Overview Scrutiny Committee, urging them to make sure that Oxfordshire Clinical Commissioning Group conducts a full public consultation on the proposed merger of Buckinghamshire, Oxfordshire and Berkshire West Clinical Commissioning Groups, before sending any application to NHS England.

The campaign group has urged the Councillors’ committee to require Oxfordshire Clinical Commissioning Group to comply with the relevant legislation and regulations.

The three Thames Valley Clinical Commissioning Groups are proposing to merge before April 2021.

The proposal includes combining the new Clinical Commissioning Group’s accountable officer role with the Buckinghamshire, Oxfordshire and Berkshire West Integrated Care System executive lead role as a single leader.

As we’ve pointed out, this is an increasingly widely-practiced scam to get round the fact that Integrated Care Systems are extra-legal bodies without any statutory decision making power.

The Oxfordshire KONP letter says,

We are concerned that HOSC may be unaware of the relevant legislation and regulations pertaining to CCG mergers, which require a public consultation before submitting an application to NHS England

The creation of a remote and centralised CCG with opaque structures and complex decision-making processes risks making meaningful public engagement and involvement even more difficult. The single CCG would control the total budget, and set health policy for over 1.8 million people, which would add to existing problems of public accountability and transparency.

Further, there is a strong prospect of little or no chance of this ‘super’ CCG listening to and acting on the wishes of local people concerned that decisions taken centrally are not in their interests. Currently local CCGs have the right of veto of proposals detrimental to local health needs. The removal of this right would be a major democratic loss. The local link will be broken.

Because of our concerns that OCCG may be pressing ahead with their plans to merge without consulting the public, we would urge HOSC to consider the legal justification set out below and require OCCG to comply with the relevant legislation and regulations.

Legal basis for public consultation on Clinical Commissioning Group mergers

Oxfordshire KONP’s letter details the relevant legislation and regulations.

The relevant legislation is contained in the 2006 NHS Act, as amended by the 2012 Health and Social Care Act, which legislated for the creation of CCGs.

The relevant regulations are s9(2) and (3) and then Schedule 2(f) and Schedule 3(e) of the National Health Service (Clinical Commissioning Groups) Regulations 2012, which came into force immediately after the commencement of section 25 of the Health and Social Care Act 2012.

When reading the following section about the NHS Act 2006, you need to bear in mind that this is as amended as explained above, with those regulations in force.

NHS Act 2006

Section 14G of the NHS Act 2006 says that merger of Clinical Commissioning Groups entails the dissolution of the pre-existing Clinical Commissioning Groups and the formation of a new Clinical Commissioning Group:

14G Mergers
(1) Two or more clinical commissioning groups may apply to the Board for—
(a) those groups to be dissolved, and
(b) another clinical commissioning group to be established under this section.

This is followed by section 14H of the Act governing applications to the Board (NHS England) for Clinical Commissioning Group dissolution.

Regulations related to dissolution of Clinical Commissioning Groups

Regulations s9(3) and Schedule 3(e) say that if a Clinical Commissioning Group is applying to the Board for dissolution then the Board has to take into account the extent to which the Clinical Commissioning Group has sought the views of individuals to whom any relevant health services are being or may be provided, what those views are, and how the Clinical Commissioning Group has taken them into account. It defines relevant health services as health services pursuant to arrangements made by the Clinical Commissioning Group in the exercise of its functions. This means the views of the whole population for which the Clinical Commissioning Group is responsible must be sought, and that would require public consultation.

In addition, and in case it were to be argued that Clinical Commissioning Group merger does not entail Clinical Commissioning Group dissolution, but rather a change to the Clinical Commissioning Group constitution to vary the area or list of members, then section 14E of the Act (Applications for variation of constitution) and related regulations s9(2) and Schedule 2(f) would apply. This would also require public consultation.

The relevant parts of the Regulations are quoted below:

Variation of CCG constitution and dissolution of CCG: factors etc.
9.—(1) This regulation applies if a CCG applies to the Board—
(a) under section 14E of the 2006 Act, to vary its constitution, or
(b) under section 14H of the 2006 Act, for the group to be dissolved.


(2) Schedule 2 sets out factors which the Board must take into account when determining whether to grant an application under section 14E.
(3) Schedule 3 sets out factors which the Board must take into account when determining whether to grant an application under section 14H.

Schedule 2 Factors relating to applications to vary CCG constitution
2(f) The extent to which the CCG has sought the views of individuals to whom any relevant health services are being or may be provided, what those views are, and how the CCG has taken them into account.
“Relevant health services” means any services which are provided as part of the health service pursuant to arrangements made by the CCG in the exercise of its functions.

Schedule 3 Factors relating to applications for CCG dissolution
3(e) The extent to which the CCG to be dissolved has sought the views of individuals to whom any relevant health services are being or may be provided, what those views are, and how the CCG has taken them into account.
“Relevant health services” means any services which are provided as part of the health service pursuant to arrangements made by the CCG in the exercise of its functions.

In summary, according to legislation, Clinical Commissioning Group merger entails the dissolution of Clinical Commissioning Groups. Applications to merge Clinical Commissioning Groups are therefore governed by regulations about dissolution of Clinical Commissioning Groups. Such applications require the Board (NHS England) to take into account the extent to which the Clinical Commissioning Group has sought the views of individuals to whom health services are provided through arrangements made by the Clinical Commissioning Group, in other words the whole population for which the Clinical Commissioning Group is responsible. That would require a public consultation and not just an “engagement” with selected stakeholders.

999 Call for the NHS supports the demand for full public consultation on all Clinical Commissioning Group mergers, before any application to NHS England.

But sooner rather than later, Clinical Commissioning Groups should be abolished.

Until recently, 999 Call for the NHS’s view has been that Clinical Commissioning Groups’ mergers are kind of irrelevant – because the problem with Clinical Commissioning Groups is not how many of them there are, but that they exist at all.

They were created by the 2012 Health and Social Care Act in order to entrench the marketisation of the NHS and to add privatisation knobs on to it. We think they should be abolished, as they would be if/when the NHS Reinstatement Bill is passed by Parliament.

Where is democracy? Such huge changes require Parliament to legislate

But recently we’ve become aware that Clinical Commissioning Groups are being merged so that there will be one per Integrated Care System and the single Clinical Commissioning Group, as a statutory organisation, will be able to make planning, purchasing, contracting and financial decisions on behalf of the Integrated Care System, which has no statutory status or powers.

If the government want Integrated Care Systems to be responsible for planning and commissioning a region’s NHS services, they should put a Bill before Parliament and go through democratic processes to make this happen. Not try and sneak this huge change through by some kind of scam or fiddle.

Having a single Clinical Commissioning Group would make it easier to cut services and costs in an Integrated Care System. This has been brought home by one of the latest in the growing line of Clinical Commisioning Group proposed mergers – in Lancashire and South Cumbria Integrated Care System.

This is proposing to merge all 8 Clinical Commissioning Groups, the better to decide on which hospitals to cut and centralise. It seems the various Clinical Commissioning Groups are currently fighting their own corner within the Integrated Care System, to protect their own hospitals. So abolishing them is the way to make cuts on an Integrated Care System-wide basis.

It appears from the Health Services Journal article about the Lancs and S Cumbria Clinical Commissioning Groups mergers that the way this will work is that out of the 8, there will be one Integrated Care System-wide Clinical Commissioning Group and the rest of the staff from the Clinical Commissioning Groups that no longer exist will be redistributed to the 5 Integrated Care Partnerships that are based on the 5 local authority areas.

The end of District General Hospitals is nigh

This all casts a somewhat different light on Clinical Commissioning Group mergers and the reasons for them – ie as an instrument of pretty massive District General Hospital reconfigurations/cuts/centralisations which are a feature of most Sustainability and Transformation Partnerships/Integrated Care Systems.

This is effectively going to end District General Hospitals and replace them with unsafe local hospitals (unsafe because they will lack key services that underpin all the others) alongside highly centralised teaching hospitals.

At the September 4th 2019 West Yorkshire and Harrogate Joint Health Scrutiny Committee meeting, Calderdale Councillor Colin Hutchinson had some caustic words about this.

At the same time, there is now a rash of mergers of hospital trusts. We are seeing a massive undoing of the NHS as we know it and everyone urgently needs to join the dots.

Redistribution of staff from merged Clinical Commissioning Groups to ‘place based’ Integrated Care Partnerships/Alliances

We need to also draw attention to the integration of commissioning at “place” level ie local authority-level, as in the case of the proposed Lancashire and South Cumbria Clinical Commissioning Groups merger.

This is going to be how the powers-that-be deflect criticism that merging Clinical Commissioning Groups undoes the (anyway rubbish) commitment to localism, that Clinical Commissioning Groups have allegedly represented until now.

Of course the claims that localism meant local clinicians using local knowledge to decide what was best for local populations and the local NHS were pure Royston Vasey.

In reality, Clinical Commissioning Groups everywhere have been heavily directed to impose cuts, privatisation and USA accountable/managed care models, by the governments’ quangos NHS England and NHS Improvement.

As for local authorities, as the Department for Communities and Local Government pointed out, the aim of the 2011 Localism Act was primarily ‘to provide them more freedom to work together with others in new ways to drive down cost’.

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