Health and Care Act: implementation update

Posted on 24/06/2022 by Ed Hammond.

Next week, clinical commissioning groups (CCGs) will cease to be, and in their place new statutory Integrated Care Boards (ICBs) will come into being – taking responsibility for the design and delivery of health and care services across a wide geographic footprint.

While these changes have been a long time coming it is important not to underplay their importance. This is arguably the biggest change to management and decision-making in the NHS since the creation of primary care trusts, and the “Trust” system overall, in the 1990s. The creation of ICBs – and integrated care partnerships (ICPs), which complement them – will lead to different decisions being made in fundamentally different ways.

Into this mix is thrown local health scrutiny – resource-strapped and often with fairly limited, or in some cases non-existent, relationships with the new bodies coming into existence. Health scrutiny will retain all of its powers (for the time being) and continues to play a vital role. But ICBs are being created for a reason, and that reason will invariably be to redesign, to rationalise and – in some cases – to decommission and downgrade local services. And when this happens, scrutiny and its statutory responsibilities are not far behind.

This landscape is however a new one, and we recognise that practitioners will need support in how they engage with ICBs and other health partners. This is the case over the course of the next year – the “transitional” period before the Secretary of State’s new powers of intervention are introduced – and thereafter.

We have been working with DHSC and NHS England on this recently. In the coming weeks the following guidance documents will be published:

• “Working in partnership with people and communities”. This will be statutory guidance for integrated care boards, NHS Trusts, NHS Foundation Trusts and NHS England. It contains (some) advice for these bodies on engaging with health scrutiny;
• Interim guidance from DHSC setting out 5 principles to govern ICB/scrutiny relationships.

Over the course of the coming months, more material will be produced and published. The form and detail of this is unclear but it seems likely that it will include:

• New Regulations, replacing the existing health scrutiny Regulations from 2014;
• New statutory guidance directed at the Secretary of State setting out his/her powers to intervene, and how those powers will need to be used;
• New statutory guidance setting out more detail on health scrutiny and its powers.

It is likely that, further to the above – and based on where gaps in this content might exist – CfGS may suggest working with partners to produce supplementary guidance.

For all the talk of guidance, however, we should be clear about to whom that guidance should be directed. In our view it is health partners who are most in need of support in this area – to understand health scrutiny, its duties and powers, and how it helps to deliver vital accountability to local people. We do not want health partners to operate under the inaccurate assumption that the removal of scrutiny’s powers of referral mean that other scrutiny powers are being reduced and removed, for example.

We do have a sense of the “key asks” that we are likely to have of forthcoming Regulations and guidance – and hope that continuing conversations with health partners and civil servants will lead to some of these asks being answered. At the moment this is a general list and needs expansion, and deepening. CfGS welcomes practitioners’ views on these asks, which we will be making of Government and health bodies in the interests of ensuring that the governance framework around health and care is as strong as possible. Do they meet your needs? What other challenges do you face, and what other requirements do you think are likely to emerge this year?

Four “asks”

• Regulations and guidance must make provision for scrutiny to be able to proactively approach the Secretary of State, to invite the use of his/her intervention powers. As currently set out in the Bill scrutiny’s responsibility is only reactive – to be consulted where the SoS proposes to use those powers. But we consider that scrutiny needs to be able to bring emerging issues of concern to national Government;
• Overall, a tightening and restatement of the obligations on NHS bodies, and others in the health and care system, to engage with scrutiny. Clearer and more robust language is arguably needed in statutory guidance to make expectations, and obligations, on the part of others in the system very clear. The nature of scrutiny’s powers needs to be thrown into sharper relief – with particular reference to the way that scrutiny works with local health and wellbeing boards (HWBs), Local Healthwatch and other local bodies as partners in the oversight and good governance of the health and care system;
• Clarity and resourcing for joint committees. It is increasingly likely that, even if it does not become the norm, the establishment of joint committees or joint structures for oversight of health and care, across ICB areas, is likely to become a feature of governance in the future. Scrutiny needs a degree of consistency in how such arrangements should be established, and commitment from ICBs to provide active support to those processes. The resourcing question for those bodies needs to be grasped – with ICBs making a financial contribution to this work, which is being carried out in its interests. It goes without saying that joint committees, where established, should be able to meet remotely – we are separately part of work to bring this about through engagement with Government in the passage of the Levelling Up Bill;
• Guidance has to focus on raising the profile of scrutiny within health and care systems overall, and particularly amongst ICB leaderships. There is the risk that ICB decision-making will feel remote and unaccountable. ICBs and ICPs will be keen to seek public collaboration in their work, and scrutiny could and should be a key partner.