We ask NHS commissioners why they’re delegating their powers to sundry bodies with no Parliamentary debate or vote

  • West Yorkshire Integrated Care System Joint Clinical Commissioning Committee is meeting virtually on October 5th, 11am-1pm. The Agenda is online here. The meeting is being live streamed here .
  • This is the CK999 deputation. It’s about agenda item 38/21, Integrated Care Board constitution – development and stakeholder involvement.

A. Please will you clarify what the Clinical Commissioning Groups and Integrated Care System Director and Governance Officer are telling stakeholders in the development of the statutory Integrated Care Board constitution, about these key issues:

There is nothing in the Health and Care Bill that provides a legal basis for statutory Integrated Care Boards to delegate their functions.

NHS England’s August 2021 Interim Guidance on Integrated Care Board Governance explicitly states that it would only be lawful for statutory Integrated Care Boards to delegate their functions,  on the basis of Department of Health and Social Care statutory guidance and statutory instruments, once Parliament had passed the Health and Care Bill. The Bill itself does not contain any provision for delegation of IC Board functions.

Unless in the meantime the Public Bill Committee approves an amendment about statutory Integrated Care Board delegation of its functions, this key aspect of the Integrated Care Boards’ constitution and governance will evade the attention, debate and votes of MPs and Lords. Effectively removing it from the democratic process of lawmaking and preventing MPs and Lords from fulfilling their duties as lawmakers. What possible reason can there be for this?

Further, NHS England’s August 2021 Interim Guidance on Provider Collaboratives (which are not mentioned in the Health and Care Bill) makes it clear that statutory Integrated Care Boards’ delegation of functions to Provider Collaboratives  would open the NHS wider to continued privatisation. This is the relevant NHS England guidance on Provider Collaboratives:

“The Health and Care Bill, if enacted, will enable ICBs to delegate functions to providers including, for example, devolving budgets to provider collaboratives.” (p14)

and

“Independent sector providers …participation in provider collaboratives may be important to delivering benefits, depending on local priorities and provision. The extent to which independent sector providers can participate in decisions of a provider collaborative may depend on the specific collaborative arrangements and responsibilities; this will need to be considered locally” (p19)

Also, NHS England’s Interim Guidance on Integrated Care Board governance enables Integrated Care Boards’ delegation of financial and contracting functions to a wide range of “partners”. Without specifying whether these “partners” are statutory public bodies, third sector or private companies – or all three.  

NHSEngland’s interim guidance is incoherent. Its guidance on Provider Collaboratives claims that “The Health and Care Bill, if enacted, will enable ICBs to delegate functions to providers including, for example, devolving budgets to provider collaboratives.” But its guidance on Integrated Care Board governance is explicit that 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.

B. If the Clinical Commissioning Groups and the West Yorkshire Integrated Care System Director and Governance Officer are raising these key issues with stakeholders in the development of the Statutory Integrated Care Board  constitution, what is the range of stakeholder responses?

C. If you are not raising these key issues with stakeholders, why not?

Update: The answers in plain English

Since the Chair made the point in the meeting that clarity of language is vital, here is a fair plain language summary of the Integrated Care System’s response:

A) The Clinical Commissioning Groups and Integrated Care System staff are not telling stakeholders in the development of the statutory Integrated Care Board constitution about any of the key issues I asked about. (And they will not raise them in the consultation on the constitution either.)

B) This being the case, there are no stakeholder responses to any of these issues.

C) The reason they are not raising these issues with stakeholders during the development of the statutory integrated care board constitution,  is because they are only talking to them about the process of developing the constitution and they do not regard these issues as having anything to do with that process. 

(On their response to C, I beg to differ – I can’t see how the process of drafting a constitution to include central elements that have no basis in provisions in the primary legislation is not about process, but there you go.)

Here is the video of the meeting .  The Q&A is from around 14 min 20 sec to around 18 min 06 sec approx.

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