The ICS Design Framework, published in June 2021, was light on detail of place-based arrangements which many took to confirm the permissive approach to place as promised in the White Paper.
The long-awaited Health and Care Bill has now been published and underwent its second reading on 14 July. There are no particular surprises in the Bill as it largely reflects the intentions set out in the White Paper and ICS Design Framework. It does not contain any express reference to 'place', since place will be a construct of collaboration. The Bill does, however, contain some of the tools promised since the NHS long-term plan including joint committees.
Keeping it simple – form follows function
The importance of keeping governance as simple as possible cannot be stressed enough. Governance structures at place should be enablers, in the same way as shared data and resources. Starting with form rather than function rarely results in effective and straightforward governance structures, however, given the need to have a structure of some kind established for a 'safe landing' come April 2022, many places are looking to establish or refine existing structures over the coming months.
Some more developed places will want to move faster and look at ambitious plans for April 2022, including making use of the new tools in the Bill if/when they come into force to ensure maximum delegation from the Integrated Care Board (ICB) into place in line with the principle of subsidiarity.
The ICS Design Framework flagged five potential place governance models. Now we have the Bill, we are able (to a degree) to piece together how the tools in the Bill might assist in establishing these models. It is important to recognise that the five models below are unlikely to be mutually exclusive. So potentially, a combination of these options could be brought together to form the place-based governance depending on the scope of the arrangements and the relationships between the partners. We look at each of the models below:
i. Consultative forum – from a legal perspective this is the model that most places are likely to be operating with currently due to the restrictions in the current legal framework. The Bill does not alter the ability for partner organisations to operate in this way. On the spectrum of place collaboration, this model is likely to be appropriate for less well-developed places, where decisions are made by the ICB, but may be informed by a forum of stakeholders.
ii. Committee of the ICB – with delegated authority to take binding decisions about the use of ICB resources. This is enabled in the Bill and, as currently drafted, members of the committee can come from outside the ICB although appropriate safeguards will need to be put in place regarding conflicts of interest.
Many places we are working with are looking at this option as a potential route to a 'safe landing' in April 2022, recognising that it will evolve further from there. A key attraction is the ability of the committee as a whole, with its mix of members from different organisations, to take decisions on behalf of the ICB.
iii. Joint committee of the ICB and one or more statutory bodies – ie local authorities, NHS trusts and foundation trusts. The Bill gives NHS bodies, including ICBs, new powers to form joint committees. These can be formed between any mix of ICBs, NHS trusts, NHS foundation trusts and local authorities. The participating NHS organisations can also pool funds.
This area is one to watch as the Department of Health and Social Care can flex some of the rules about the new joint committees by issuing regulations. Such regulations could prescribe/limit the functions of an ICB/NHS trust/foundation trust that could (and could not) be delegated to the joint committee/pooled funds, similar to the way in which existing regulations say what can be delegated under section 75 arrangements.
NHS England can also publish guidance on the use of the new joint committees and ICBs, trusts and foundation trusts will have to take that guidance into account.
At present, we do not know if such regulations and/or guidance will be made, therefore we do not yet have all of the detail we need to be able to define the scope of a joint committee under this option. Place partners will also want to consider how they would manage the interaction between this new joint committee and any section 75 joint committee.
iv. Individual ICB directors having delegated authority from the ICB which can be exercised through a committee – the ICB would delegate decision-making at place level to an ICB director (often referred to as place leader or place director) through its internal governance. The ICB director can be jointly appointed with the local authority or with an NHS trust or foundation trust and could also have delegated authority from those bodies.
Under the Bill, NHS England can publish guidance about joint appointments and ICBs, trusts and foundation trusts must take any such guidance into account.
v. Lead provider managing resources and delivery at place under contract with the ICB – this is not expressly provided for in the Bill, however it would be enabled through contractual arrangements between the ICB and a lead provider, possibly with a provider collaborative 'wraparound'. The new joint committee arrangements outlined at point iii) above might assist, as these enable NHS trusts and foundation trusts to take joint decisions and pool funds, though primary care and voluntary sector participation would need to be built in.
All of the above models, or any combination of them, will need 'mapping' against existing place arrangements, and partners should consider how existing governance groups and meetings can be 'tweaked' to fit the new structure once determined rather than new groups being created. Linkages with partner organisation statutory frameworks as well as the role of the Health and Wellbeing Board will also need to be carefully considered and built in.
Place priorities for action
So, with some details still to be confirmed, what can places do now to prepare for 2022? Our advice would be to consider what the ultimate ambition of the place partnership is. Once this is defined, partners should consider what the place will need by way of functions and resources at place level, as well as governance structure and processes, in order to deliver on collective priorities and achieve the ambition. The corresponding 'ask' to the ICB can then be set out, with assurance provided to the ICB of the infrastructure (including governance) and relationships in place to receive the necessary delegation.
Many places are planning a period of 'shadow' operation prior to April 2022 to road test arrangements. It is clear that these arrangements will need to evolve as we receive further clarity on the legislative and policy framework for April 2022 and beyond.
We are working with numerous ICS and Places across the country and would be happy to discuss your requirements with you.
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