With the Health and Care Act on the statute books including key provisions relating to the dissolution of Clinical Commissioning Groups (CCGs) and establishment of Integrated Care Boards (ICBs), NHS Trusts and Foundation Trusts are continuing their preparations for operating in the ‘new’ world in which, according to the Integrated Care System (ICS) Design Framework, providers will ‘increasingly be judged against their contribution to the objectives of the ICS’. While providers may not be subject to such obvious upheaval as CCGs, there are many factors to consider which require thought and planning. Some of these, such as input into the establishment and operation of the ICB/Integrated Care Partnership (ICP), involve entirely new concepts, whilst others, including the development of more extensive provider collaboratives and contribution at Place, will be more familiar. Here we consider five key areas which will no doubt be occupying NHS providers in the run up to the expected July 2022 in force date, and beyond.

To hear more of our reflections on our Place work and future priorities for Places, you can sign up to attend our webinar on 22 June 2022 here.

1. Input across the system

Both the legislation and guidance make clear that NHS providers are expected to input in different ways into the full range of bodies / partnerships to be established across each system. In some instances, that involvement is prescribed; in others, it has been left intentionally more flexible, subject to local arrangements. From a purely practical perspective, understanding, mapping and implementing that involvement can be complex and time-consuming, including in terms of the workforce commitment required to do so. For some providers, this is complicated by the fact that they straddle more than one ICS. The involvement of NHS providers across the new systems will include:

  • ICB - the Act sets out that while individual providers will not have a membership seat at the ICB table, they are required to, jointly with other providers, nominate a ‘partner member’ to sit at it. This partner member will not be a representative of the provider organisation or sector but will be required instead to bring their ‘perspective’ to the ICB. The person holding this role is expected to be a senior Trust / Foundation Trust individual, likely a Chief Executive. Providers are also designated as ICB partners with responsibility for helping to prepare the ICB Forward Plan and Joint Capital Resource Use Plan.
  • ICP - guidance on the role of the Integrated Care Partnership (ICP), another new concept within the system, includes NHS Trusts / Foundation Trusts on the ‘illustrative list’ for ICP membership and engagement. Exactly where and how providers are expected to be involved with this body, referred to as a joint committee between the ICB and local authority tasked with preparing the Integrated Care Strategy setting out how assessed needs will be met by the exercise of functions of the ICB / NHS England or local authorities, is not prescribed and is subject to local determination.
  • Place - we have written more generally about the concept of Place in a separate article and this concept is likely to be more familiar to providers, albeit not without its challenges, in view of the establishment over recent months of Place-based partnerships and considerations as to the governance models for these partnerships and the role of NHS providers within these partnerships. The involvement of NHS providers in Place arrangements will continue with the development of Place-based partnerships, albeit, again, in a largely non-prescribed way which will vary between systems. The challenge for NHS providers currently is understanding their membership of and role within the Place-based partnership, particularly in terms of how and whether ICBs and local authorities will in future commission through Place, through provider collaboratives, or direct with individual providers, and which of their functions, if any, providers may choose to delegate to Place. The development of Place arrangements and the role of NHS providers within these arrangements is likely to be something that will develop in time over the next few months and even years as the Act comes into force, ICBs are established and decisions are taken as to commissioning and provider functions at either a system level or Place level.
  • Provider Collaboratives – all acute and mental health trusts are required to be a member of at least one provider collaborative by July 2022, with community and ambulance trusts asked to participate in collaboratives where this is deemed beneficial for patients and makes sense for the providers / systems involved. For some providers, formal collaborations with other providers will already be familiar and a number of provider collaboration arrangements will already exist across the country. However, for others, it may be new, and the idea of entering into formal and contractual collaborations with other providers may be a daunting and unwelcome concept, particularly when the legislation establishing NHS Trusts and Foundation Trusts as independent, sovereign organisations subject to individual powers and duties is not due to change.

2. Potential for conflict

Executives of NHS Trusts and Foundation Trusts will remain accountable to their Boards for the performance of the functions for which their organisation is responsible, and Trusts will remain as sovereign NHS organisations with statutory powers, duties and functions. However, in the new world, Trusts will also be under a duty, jointly with the ICB, to act with a view to ensuring system financial balance and, pursuant to the Triple Aim, which will be enshrined in statute via the Act, must also have regard to the wider effect of their decisions on (a) the health and wellbeing of the people of England; (b) the quality of services provided to individuals; and (c) efficiency and sustainability.

With the adoption of so many roles across the system (as referred to above) and both organisational and system duties / responsibilities to consider, there is clear potential for providers, their Board members, officers and employees to find themselves in a position of actual or potential conflict when discussing or taking decisions on matters within different constituent parts of the overall system. This has implications for both individual providers, and the system bodies and partnerships in which the provider is involved.

There is no easy way of removing this potential for conflict – with the desire for closer collaboration and integrated working across the system comes challenges such as attempting to avoid and/or managing actual or potential conflicts of interest - but providers will need, at every step of the way, to remain cognisant of that potential, being clear on who they are representing in a particular role, declaring conflicts of interest and abstaining from discussions and decision making where considered necessary, carefully balancing organisational interests against collective and collaborative aims. NHS conflicts of interests’ policies will remain extremely pertinent - new/updated NHS guidance in this area is expected to be issued over the coming months.

3. Provider collaboratives

We have written separately in more detail about the development of provider collaboratives, and key considerations for these arrangements, which guidance released last year confirms are expected to work to take advantage of the benefits of scale. From an individual provider perspective there are a number of considerations to bear in mind. The key point is that during the course of 2022 all acute and mental health providers will be required to become part of at least one provider collaborative. Other providers, including community services, ambulance trusts, and non-NHS providers, are expected to be part of a provider collaborative where this would benefit patients and would make sense for the providers and systems involved.

Provider collaboratives, or similar arrangements, are not new, and different providers will therefore have different levels of existing involvement / familiarity with such approaches. For providers not already involved in a collaborative, the key piece of work over the past few months will have been forming a relationship with other providers to join or develop one or more collaboratives and to consider the objectives of the collaboration and the benefits that can be realised through working collaboratively at scale. For providers with existing arrangements, the task has been mapping and developing those arrangements in light of the guidance and within the context of their local ICB’s (or in some cases, multiple ICBs’) developing arrangements. There is clarity in the guidance that the intention is to build on existing arrangements where these are already working well rather than start from scratch, but many questions still remain such as what is the optimum form or model for such arrangements, how are these collaboratives expected to operate within a Place or system and what direct relationship will they have, if any, with the local commissioning bodies. Providers are having to grapple with the workforce implications of involvement in collaboratives both in terms of the set up and governance of the collaborative itself, and in terms of the staffing commitments and practicalities of joint working arrangements being developed.

4. Commissioning

A key concern for providers presently is likely to be the uncertainty surrounding the operation of NHS commissioning activity in future. There is a question mark over whether / what ICBs will delegate to Place and what will be commissioned directly by the ICBs. If ICBs do delegate significant commissioning responsibilities to Place-based partnerships, how will future service provision be managed in terms of contracts with individual providers or with provider collaboratives? Initially at least a lot of this is likely to depend on local context in terms of existing relationships and the maturity of both the relevant Place-based partnerships and provider collaboratives. However, the current uncertainty in this area is clearly unhelpful.

Providers are also expected at some point to take on certain commissioning responsibilities through, for example, the operation of provider collaboratives, determining how resources are best deployed to meet the health needs of the population, but without prescribed detail of what this means in practice, it is again an area likely to remain uncertain for the time-being and highly dependent on local context. And, to add further layers of complexity, providers are likely to be expected at some point to delegate some functions to Place to be implemented through the operation of Place-based partnerships.

A new provider selection regime for healthcare services to work alongside or replace current procurement processes is also taking shape with Regulations expected in the coming months and an earliest in force date of 1 August 2022. This will be relevant for providers both bidding for services and acting as commissioner arranging the provision of healthcare services by other providers and is designed to ensure that competitive tendering of healthcare services is a choice not a requirement, with services arranged in the best interests of patients, taxpayers and the population.

Overall, however, while there are many ideas about how commissioning will operate in the ‘new world’ and how this might be expected to impact on providers, the reality of how this will happen remains very much up in the air and will likely be subject to how arrangements are implemented and operate in the transition period post-July 2022.

5. Regulation

A final issue for individual providers to grapple with in the run up to July 2022 and beyond is the development of and changes expected to the regulatory environment. NHSEI has already developed and published the NHS System Oversight Framework for 2021/22 which describes its approach to overseeing and regulating both individual NHS bodies and systems, and how NHS bodies are working effectively as part of system operations. When the Act comes into force, in addition to continuing its regulatory role in respect of individual providers, the Care Quality Commission will also have a role in regulation at ICB / system level, looking at collaboration between system partners, and potentially also a role at Place level (according to the latest White Paper). NHS providers will be regulated and judged both as Trusts required to comply with their individual regulatory obligations, and also in terms of their role working as part of the wider system and their involvement in ensuring the system’s compliance with all necessary regulatory requirements.

Trusts must look to balance their obligations under the individual provider licence with their obligations to contribute towards system objectives and compliance. It is unclear how providers will effectively achieve and maintain this balance in practice, a point which, once again, will require significant adjustment and management during the post-July 2022 transitional period and beyond.

Conclusions

As we approach July 2022 it is clear that providers have a lot to think about and take forward in terms of ensuring that they are in the best possible position to operate effectively going forwards both individually and as part of their local system(s). As the above summary makes clear, there are many competing pressures and priorities to balance which will see providers, their employees and officers stretched both conceptually, in terms of understanding the system roles they have to play, and practically with respect to the time commitments required to do so.

While the overall system landscape is becoming clearer, there remains a substantial degree of uncertainty in terms of how particular aspirations, for example in relation to commissioning and the scope of the role played by provider collaboratives in this and other areas, will function practically. Resolving those uncertainties will take time and be subject to local variation, system maturity and preferences during an ongoing transitional period. Providers will have an important role to play in the developing plans, and will no doubt experience a busy time doing so.