Responding to draft NHS Integrated Care Board Constitution public consultations

Draft constitutions for the 42 new NHS Integrated Care Boards (IC Boards) are starting to appear and are subject to public consultation.

The NHS Integrated Care Boards are intended to come into existence in April 2022, assuming that Parliament passes the contentious Health and Care Bill by then.

Although the constitutions will vary to some extent, they are based on a common template. Set out below is a Summary response to eight key aspects of the West Yorkshire Integrated Care Board draft constitution, prepared by Calderdale and Kirklees 999 Call for the NHS (CK999).

The full response, including more detail on six of these aspects is downloadable here:

These may be helpful to activists wishing to respond to their IC Board consultation – whether in West Yorkshire or elsewhere.

Some Integrated Care Systems have announced ridiculously short “consultation” periods which have already ended. We suggest people protest these deadlines and send their responses anyway if the deadline has been missed. For example Herts and West Essex Integrated Care System had a 7 day consultation period (4-11 Nov) and Surrey Heartlands’ consultation ended 30 November.

You are welcome to use CK999’s response for talking points for your own consultation response.

(N.B. in West Yorks, the Governance Handbook has not been published and was therefore not made part of the consultation – a major omission; it may be different elsewhere).

The deadline for responding to the West Yorkshire IC Board Constitution consultation is 14 January 2022.

Summary response

  1. The consultation should stop until the Integrated Care Board Governance Handbook is published

The consultation on the draft IC Board constitution cannot meaningfully proceed without the IC Board Governance Handbook, which is omitted from the draft constitution and its annexes. The Consultation should therefore be stopped immediately and only restarted once the Governance Handbook has been published. It should then run for the full 12 weeks.

  1. Provision of a just, comprehensive health service for all

The constitution should state that the West Yorkshire IC Board commits to arranging for the provision of a comprehensive health service, free at the point of use, accessible to anyone present in any part of West Yorkshire or the Craven District Council area, at the time and place of their clinical need for health care.

The Constitution should also specify the powers by which the IC Board will realise its “vision” of preventing ill health and that “places will be healthy – you will have the best start in life”.

  1. The Constitution should rule out any delegation of the Integrated Care Board’s powers and functions

The IC Board Governance Handbook, when written and published, should specify that there should be no delegation of the Integrated Care Board’s powers and functions.

Nothing in the Health and Care Bill allows statutory Integrated Care Boards to delegate their commissioning functions. NHS England guidance is nonetheless that IC Board constitutions should include arrangements for delegation of the Board’s functions and powers, since the Department of Health and Social Care will produce secondary legislation to cover this once Parliament has passed the Health and Care Bill into law.

This practice has been strongly criticised by two cross-party House of Lords Select Committees as “government by diktat” and “a tendency in departments to introduce bills before the underlying policy has been thoroughly thought through.”

Clinical Commissioning Groups and Integrated Care System officials who are writing and consulting on the statutory Integrated Care Board constitution should surely not be complicit with such legislative malpractice.

  1. The draft IC Board Constitution’s arrangements for public participation need strengthening

The Constitution should include:

  • Arrangements for public participation in Integrated Care Board Meetings in public, and in preparation of the Integrated Care System Plan;
  • Integrated Care Board compliance with West Yorkshire Councillors’ scrutiny and overview powers and duties, as carried out by the West Yorkshire Joint Health Scrutiny Committee
  • Public/lay membership of the Integrated Care Board (and other bodies that the Board delegates its functions to, if and when legislation is passed to allow such delegation)
  • Compliance by the Integrated Care Board (and any of its committees) with Freedom of Information regulations and Data Protection regulations
  • Adequate arrangements for public consultation on the IC Board’s system plan, that are not based on box-ticking exercises carried out by cash-strapped community organisations in return for meagre payment
  1. IC Board membership

IC Board membership should include the public, 1 councillor from each local authority, Trade Unions, 1 Social Care representative and 1 each from the vital but overlooked and severely under-resourced NHS Dentistry and NHS maternity services.

Several aspects of Integrated Care Board membership arrangements need clarification, – including how the IC Board Chair and Chief executive can be removed from office and on what grounds.

The following providers should be ineligible for IC Board membership: Voluntary and Community Social Enterprise organisations, Alternative Provider of Medical Services contract holders, providers of GP services that are members of superpartnerships and providers of GP services that are owned by large corporations.

The constitution should include Conflict of Interest rules for IC Board members.

  1. IC Board Annual (rolling) 5 Year Plan publication

This section of the IC Board constitution should specify that the plan should be an accurate, current, readily accessible and understandable source of public information about West Yorkshire NHS and social care services.

To this end, this section of the constitution should specify that:

  • The annual 5 year plan should include a fact-based summary review of the past year’s performance by the IC Board of its duties to: improve the quality of services, reduce inequalities, have regard to the wider effect of its decisions, involve and consult the public, and financial duties.
  • The IC Board’s duty to have regard to the wider effect of its decisions includes providing evidence in its annual 5 year plan about how its discharge of its Triple Aim duty has affected:
  • The health and well-being of its population;
  • The quality of services provided to individuals; and
  • Efficiency and sustainability in relation to the use of resources.
  • The annual 5 year plan will include the full extent of required Quality, Innovation, Productivity
  • and Prevention(QIPP)/efficiency savings for the IC Board as a whole and its “partner members”, and outline how this will affect the provision of services to its population, the quality of those services, and the effects on the health and well being of the population.
  • If the annual IC Board five year plan is to be largely an aggregation of place-based plans, these place-based plans must be promptly published where it is easy for the public and councillors to find them, and they should be subject to place-based scrutiny while in a formative stage.
  • The Constitution needs to clarify how the health and healthcare needs of the population within each “place” can be identified and reconciled with available resources ( Strategy and Planning ICB1), when resource allocation across the Integrated Care System is carried out by the IC Board.
  1. NHS Provider selection

This section of the IC Board constitution should include an easily understandable, factual summary of the “separate procurement regime” that is to replace current NHS procurement and contracting legislation and regulations. Specifically (if we have understood this correctly), that contracts can be rolled over/extended, awarded without a competitive tender, awarded though a competitive tender, or commissioned on an Any Qualified Provider basis.

It should outline how the Integrated Care Board will commission NHS and social care services using this provider selection regime, in order to:

  • maximise accountability and transparency
  • maximise the award of NHS contracts to NHS providers,
  • prioritise service quality, improvement of NHS and social care staff working conditions and terms of employment, improvement of health outcomes and reduction of health inequalities

Since it seems clear from NHS England statements on Provider Collaboratives that they will have significant commissioning powers, the Integrated Care Board Constitution should state which NHS and social care services it will have responsibility for commissioning, and which services will be commissioned by the two West Yorkshire Provider Collaboratives: West Yorkshire Association of Acute Trusts and WY Mental Health, Learning Disabilities and Autism Provider Collaborative.

The Constitution should also outline how the Provider Collaboratives will use the provider selection regime, with the same objectives as the bullet points above.

  1. Workforce

The Constitution should specify that a Workforce Committee of the Integrated Care Board will work locally, regionally and nationally to improve the recruitment and retention of NHS and social care staff.

Its purpose will be to fill the workforce gaps identified in the 2018 West Yorkshire/ Health Education Workforce Strategy; carry out any necessary further assessment of local staffing needs in the short, medium and long-term; and ensure adequate training, recruitment and retention measures.

The workforce committee will have to publish its minutes, own its responsibilities and be open to scrutiny. The Committee will include worker representatives, including trade unions and education providers, including secondary schools.

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