The development of STPs and now integrated care systems (ICS) presents a degree of uncertainty for the future of NHS commissioning. With seemingly no potential for amended or new legislation in the short to medium term to reflect the policy shift, CCGs in particular are faced with implementing ICS/place-based commissioning structures and new care models with little central guidance on how to do so whilst respecting their accountability and responsibilities as statutory bodies.

For the time being CCGs will continue to exist in some form with their statutory functions intact. The commissioner/provider split continues, and both CCGs and local authorities as commissioners must reconcile the existing legal framework with the policy drive to both integrate health and social care commissioning, as well as look to ‘bridge’ the commissioner/provider split by involving providers in commissioning at both ‘place’ and ICS level to some degree. We are working with a number of commissioner clients in helping design and implement place-based governance models for decision-making to reflect ICS/place planning footprints. Often these models will look to include NHS provider organisations, GP federations and third sector representatives operating in a ‘forum’ structure, with individuals exercising delegated authority from their nominating organisations. Other structures include the much loved but often misunderstood ‘committee in common’.

Operating in this way whilst mitigating the risk of successful legal challenge, particularly where service reconfiguration decisions are being considered, is tricky. Some of our key lessons learned for commissioners on these arrangements include:

1. Respect the commissioner/provider legal split

Any attempts or perceived attempts to blur the two sides of this division run the risk of being challenged. Navigating the fine line between inadvertently allowing providers to exercise CCG functions and involving them in developing commissioning strategy in practice is a challenge. Providers should not be involved in decisions about the exercise of functions by CCGs, such as being asked to agree a commissioning plan for a local area. They could be involved in supporting the development of such a plan, with their detailed knowledge of the area, provided this was done transparently and with effective management of conflicts of interest. It will not be sufficient that the mechanism works ‘on paper’. Even if the structure created passes a legal ‘health check’, the constituent organisations within any planning structure will need to be diligent as to the ways in which they implement their arrangements.

2. Consider the local authority’s scrutiny role

Although clearly key to the ‘place’ footprint and the drive to integrate commissioning, the involvement of the local authority should be carefully managed alongside their health overview and scrutiny roles, as well as the political element. Involving the local authority at an early stage will be of assistance but it must be done carefully so as to avoid the local authority later being accused of fettering its discretion and failing to properly scrutinise what may be major changes in the local health economy. From the local authority’s perspective, it may wish to consider taking less of a ‘core’ role in the ICS, so as to maintain a safe distance to effectively discharge its statutory functions.

3. Address competition issues early on

Bearing in mind the duties of both providers and commissioners to ensure they do not act anticompetitively, the chosen governance structure will need to demonstrate controls over the use of competition sensitive data across the group, as well as how their collaboration and any reduction in choice within the local health economy/loss of competition is offset by the benefits to patients of a more integrated and sustainable set of services overall. Being able to provide such evidence on an on-going basis is extremely important.

4. Beware excessive delegation of power to individuals/committees

One potential challenge that must be borne in mind for an ICS/place structure is whether or not it could be seen to undermine the broader and detailed governance structure set out by Parliament in legislation. Many developments and changes as part of ICS development to date have been through individual executives representing their NHS bodies in forums with other NHS bodies. Even if NHS bodies have a broad ability to delegate, where significant changes are proposed or plans are being considered (e.g. a CCG’s statutory commissioning plan or the significant reconfiguration of provider services) as a matter of good governance, those matters should be taken by boards/ governing bodies rather than by individuals with delegated authority from them. Delegation to an individual could be at risk of challenge if it has served to bypass statutory arrangements for scrutiny and transparency associated with having a proposal discussed and debated by a board/governing body which also includes appropriate non-executive/lay member representation. Careful consideration is needed as to what should be delegated to individuals/committees in these structures and this should be recorded and monitored. That does not mean to say that the individuals/committees receiving delegated authority cannot still use the flexibilities and powers that they have been given and have sufficient freedom to actually attain results but they need to be cognisant that they are exercising these abilities on behalf of the broader organisation and the broader organisation still retains legal responsibility for all actions taken.

Conclusion

It is widely appreciated that the current legal structure of the NHS is struggling to meet current challenges. The NHS (commissioners, providers and other stakeholders) must consider innovative ways to maximise the existing legal framework to enable them to address the growing gaps in funding, demand and capacity as well as striving for better outcomes for patients. This can be done, but it is not without legal and governance hurdles.