It will be a lot easier for NHS England and ICBs to delegate their responsibility for commissioning services to other NHS organisations. The Bill gives ICBs broad powers to do this, though we are still waiting to see the draft regulations that will set out how far these delegations can go.
There are a couple of other tools that look rather unexciting but ultimately could be powerful ways of embedding subsidiarity.
The first is the joint health and wellbeing strategy, produced by HWBs that (usually) operate on a Place footprint. These strategies have been around since 2012, sometimes languishing in a digital bottom drawer. Under the Bill, ICBs will have to have 'due regard' to the strategies and can be reported to their regulator if they don't. In practice this is not very different to the current set up. The thing that may well change is the appetite of Places to use their strategies to highlight the issues they are facing that need input (resource, co-ordination) on a regional footprint. For example, problems with digital infrastructure and patient flows across Places. After all, one of the key roles of ICBs is to tackle regional issues that CCGs with their smaller areas have struggled to address.
Secondly, there are the constitutions of the new ICBs. There is a model constitution with standard wording but this can be added to locally. One thing those drafting constitutions should consider is how the principle of subsidiarity can be reflected in the constitutions they are writing. The Interim guidance on the functions and governance of the integrated care board published by NHS England and NHS Improvement (let's call it the ICB Interim Guidance) stresses the importance of subsidiarity. It states 'arrangements should be designed to facilitate decisions being taken as close to local communities as possible, and at a larger scale where there are clear benefits from collaborative approaches and economies of scale'.
The Thriving Places guidance also highlights the importance of Places having a say in decisions made at a broader ICS level: 'Partners at place should consider how they work as part of the ICS governance to support decision-making at scale, including making decisions with at-scale provider collaboratives'. Again, this involvement is something that can be hard-wired into a constitution.
How will the constitution guard against the centralisation of control within the ICB? How will the different voices from neighbourhoods and Places be heard across the organisation? Here are some pointers:
- Assuming that everyone is bought into the principle of subsidiarity the constitution should be clear what it means in practice. Note that it is not the same as 'primacy of Place'. Primacy of Place suggests that Place is the default option for the planning of services. Subsidiarity is about taking decisions at the most local level practical, which in many cases will involve Primary Care Networks (PCNs) / neighbourhoods.
- Think about who decides what is done at what level, including by ICS-wide provider collaboratives. Do those decision-makers include people whose day job is operating at Place or neighbourhood level?
- What about the Board? Is there appropriate representation of Place and neighbourhoods at the highest level? There is a requirement that primary care and NHS providers are represented at board level but no equivalent for Place. But ICBs have the flexibility to supplement the required membership.
- What about other key committees like the Audit, Finance, Quality, Workforce and Digital committees? Is there a voice for Place and neighbourhoods?
Governance may seem a rather mundane tool for the important task of embedding local decision-making within the NHS. But the legal norm is that ICBs should follow their own decision-making procedures. Failure to do so is good ground for a legal challenge to, for example, any service reconfiguration where the correct procedures have not been followed. So this is a tool with teeth. And we've all seen the impact of having the right people around the table – good governance can ensure that happens.
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