The contentious Health and Care Bill provides no legal basis for the new statutory Integrated Care Boards to delegate their functions – such as the commissioning powers they will inherit from Clinical Commissioning Groups once these are abolished.
Regardless, Integrated Care Systems are steaming ahead with plans to delegate lots of their budgets, decision making and contracting to all sorts of bodies and joint committees.
This is being done on the basis non-statutory guidance from NHS England – specifically, August 2021 NHSE interim guidance on Integrated Care Board Governance and NHS England’s August 2021 guidance on Provider Collaboratives (which makes a mockery of Health Minister Edward Argar’s 16th September promise to MPs’ Public Bill Committee of a government amendment to prevent private companies from influencing statutory Integrated Care Boards.)
What is the government trying to hide from MPs and the public?
Why is Integrated Care Board delegation of functions omitted from the Health & Care Bill? Ask your MP!
The Health & Care Bill provides no legal basis for statutory Integrated Care Boards to delegate their functions. All there is on this subject is non-statutory guidance from NHS England – in particular, August 2021 NHSE interim guidance on Integrated Care Board Governance.
This says all the Integrated Care Board delegation of functions will only be legislated for by statutory instrument and statutory guidance – with no Parliamentary scrutiny – if and when the Health & Care Bill is passed and becomes law.
Why is Integrated Care Boards’ delegation of functions being left to secondary legislation – with no MP scrutiny, debate or vote in the Public Bill Committee which is deciding on amendments? Nor in the House of Commons? And not even in the House of Lords?
If MPs amend the Bill, NHS England’s interim guidance to Integrated Care Systems could be meaningless
NHS England’s interim guidance on Integrated Care Boards’ delegation of functions clearly admits that it has no statutory power, and that it:
” will be supplemented or replaced (as relevant) during 2021/22 by:(p25)
• Sharing learning from systems as they develop and implement governance arrangements
• Publication of full statutory guidance (statutory guidance will be based on the final legislation, learning from systems and feedback from stakeholders).”
Despite this, according to a recent Health Service Journal report, Cheshire and Merseyside Integrated Care System has set a ‘maturity’ test for its nine ‘places’ to access budgets, so that the most developed will potentially take on delegated budgets and decision-making powers from April 2022
Secondary legislation is fundamentally undemocratic
The process for secondary legislation is that the Department of Health and Social Care produces statutory guidance and statutory instruments to extend and amend existing Acts of Parliament.
We’ve already seen how unsatisfactory this undemocratic method of lawmaking is – in early 2019, we opposed the government’s stealth changes to how GPs work, that the Department of Health made through Statutory Instrument 2019 No.248 Amendments to Integrated Care Regulations.
The Statutory Instrument quietly introduced big changes to the way GPs work, without giving MPs any say in the matter. It made major changes to the existing contractual arrangements for providing GP Primary Care services. These changes enabled Integrated Care Providers (formerly called Accountable Care Organisations) to run a whole range of hospital, primary care and community health services for their given area and its population.
The Interim Guidance mandates Integrated Care Boards’ delegation of financial and contracting functions to a wide range of “partners”
Key bits from NHS England’s interim guidance about Integrated Care Board delegation of functions include:
a) Integrated Care Boards will take on Clinical Commissioning Groups’ commissioning functions but will “be able to deliver commissioning functions differently – eg to exercise their functions through, or jointly with, providers, NHS England & NHS Improvement, a local authority or a combined authority. ” It says this “offers opportunities for organisations within the NHS, and system partners, to work more collaboratively…”
My comment: Why does the guidance not specify that “providers” means “NHS providers”? Probably because “System partners” is code for private companies, charities and voluntary sector organisations.
b) The guidance adds that this will require governance arrangements that support “collective accountability between partner organisations”
My comment – how can private companies and NHS organisaitions share “collective accountability”?
c) Integrated Care System leaders must now:
“Confirm plans to ensure that commissioning functions are organised across the ICS footprint including apportioning between the ICB (system) level and ‘place’ level.”
d) “ICBs will be able to arrange for functions to be exercised and decisions to be made, by or with place-based partnerships, through a range of different arrangements.”(p10)
e) There is also more in this Interim Guidance about Integrated Care Boards delegating functions to Provider Collaboratives.
(My comment: As explained here, this opens the NHS door wide to privatisation, making a joke of Argar’s promise to the Public Bill Committee that the government will introduce a watertight amendment at Report that will prevent private companies from influencing the Integrated Care Boards)
“Provider collaboratives may be at sub system, system or supra-system level…Provider collaboratives will agree specific objectives with one or more ICB, to contribute to the delivery of that system’s strategic priorities. The members of the collaborative will agree together how this contribution will be achieved. The ICB and provider collaboratives must define their working relationship, including participation in committees via partner members and any other local arrangements” (p10)
From April 2022 trusts providing acute and/or mental health services are expected to be part of one or more provider collaboratives. Community trusts, ambulance trusts and non-NHS providers (eg community interest companies, social care providers) should participate in provider collaboratives where this is beneficial for patients and makes sense for the providers and systems involved.(p21)
• The ICB could arrange for its commissioning functions to be delegated to one or more NHS trusts and/or foundation trusts, including when working as provider collaboratives (this would require a lead provider arrangement or for the delegation to be to all the trusts involved). ICBs will continue to be held to account for the way in which the function has been discharged. An ICB would have to continue to monitor how the delegation was operating and whether it remained appropriate.
• Another option would be for the ICB to arrange for its commissioning functions to be delegated to a joint committee of itself and another/other NHS trust(s) and/or foundation trust(s).” (p21)
f) Functions of the integrated care board (Table 3) include
“working with local authority and voluntary, community and social enterprise (VCSE) sector partners to put in place personalised care for people, including assessment and provision of continuing healthcare and funded nursing care, and agreeing personal health budgets and direct payments for care.”(p13)
My comment: This is about attaching NHS funding to the individual patient to enable them to purchase their own health care. It’s a key step in the transition to the NHS as a UK version of a Medicare-type public/private limited health and care insurance system. It puts NHS in same position as social care i.e. patients having to top up basic services with their own funding if the services funded through Personal Health Budgets are not adequate to their needs. The voluntary and community sector seem completely oblivious to how they are being used in this way.
As Calderdale Trades Council noted in its reponse to the 2016 consultation on Calderdale and Huddersfield hospitals cuts and centralisation – “personal care budgets” (in that case, for all pregnant women) represent privatisation by the back door.
g) The Integrated Care Board will be involved somehow in
“joint working between health, social care and other partners including police, education, housing, safeguarding partnerships, employment and welfare services,” (p13)
- There is no mention, that I can see, if this will involve the Integrated Care Board in delegating its functions to any of those people/bodies
- There has already been justifiable alarm about the integration of NHS and police activities, that criminalises mental illness. – info here.
- At a Don’t Blow It! street stall last week, a member of the public told us he had been signed off sick from his work because sleep apnoea was making him a risk to himself and the public. Now he is on some kind of ‘integrated care’ back to work scheme run by the NHS and employment services. They are telling him he must go back to work, but refuse to say who will be responsible if he kills or hurts members of the public – him, or them for forcing him to go back to work.
h) Integrated Care Boards’ effective discharge of their full range of functions “is likely to include establishing committees of the ICB to … exercise any delegated functions.” Integrated Care Boards would have the power to…” delegate any of its functions to be exercised by or jointly with another ICB, an NHS trust, NHS foundation trust, NHS England, local authority, combined authority, or any other body that may be prescribed in Regulations. Where an ICB has delegated any of its functions to be exercisable jointly by itself and another such body/bodies, the ICB and other body/bodies may arrange for the delegated function(s) to be exercised by a joint committee.”
i) Integrated Care Boards are to publish a Scheme of Reservation and Delegation which sets out:
- functions that are reserved to the board
- functions that have been delegated to an individual or to committees and sub committees
- functions delegated to another body or to be exercised jointly with another body.