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Legal landscapes for clinical commissioning groups 20.07.11 (l0047830) 1
1. The Legal Landscape for Clinical
Commissioning Groups
20 July 2011
Presented by: Owen Willcox
2. Outline
The new NHS Landscape and roles of the key players
How are clinical commissioning groups established?
Key commercial and governance issues
4. Timetable of Reforms
Planned date Commitment
October 2011 NHS Commissioning Board established in shadow form as a special health authority
During 2012 Health Education England and the NHS Trust Development Authority are established as special
health authorities, but in shadow form, without full functions
April 2012 The next step in extending the choice of Any Qualified Provider, which will be phased in
gradually
By October 2012 NHS Commissioning Board is established as an independent statutory body, but initially only
carries out limited functions – in particular, establishing and authorising clinical commissioning
groups
October 2012 Monitor starts to take on its new regulatory functions
HealthWatch England and local HealthWatch are established
1 April 2013 SHAs and PCTs are abolished and the NHS Commissioning Board takes on its full functions
Health Education England takes over SHAs’ responsibilities for education and training
The NHS Trust Development Authority takes over SHA’s responsibilities for the foundation trust
pipeline and for the overall governance of NHS trusts
Public Health England is established
A full system of clinical commissioning groups is established. But the NHS Commissioning
Board will only authorise groups to take on their responsibilities when they are ready
April 2014 Expectation is that the remaining NHS trusts will be authorised as foundation trusts by April
2014. But if any trust is not ready, it will continue to work towards FT status under new
management arrangements.
April 2016 Monitor’s transitional power of oversight over foundation trusts will be reviewed (except for
newly authorised FTs, where Monitor’s oversight will continue until two years after the
authorisation date if that is later)
5. The NHS Commissioning Board
Approval, assurance and performance monitoring of
clinical commissioning groups
Commissions specialist services, military, dentistry,
pharmaceutical, ophthalmic, prisons and secure mental
health
Contracts with GP providers of primary medical services
Duty to promote integrated services and research and
innovation
Promotes NHS Constitution
6. Clinical Commissioning Groups
Tasked with securing improvement in physical and mental
health of their patients and with the prevention, diagnosis
and treatment of illness
Commission secondary, specialist and community care
services from NHS, independent sector and social
enterprises
Duty to promote integrated services
Design and review care pathways
Duty to promote research and innovation
Promote NHS Constitution
Must have a governing body with decision making powers
that meets in public
7. Monitor
Protect and promote patients interests by promoting VFM
and quality
Licenses new providers
Sets consistent tariffs
Supports vital service continuity
and integrated services
8. Choice and Competition
Bill will outlaw any policy to increase or maintain market
share of any sector of provider
Competition as a means to an end
Competition on quality not price
Guidance to be published on how choice and competition
to be applied to particular services
Fixed tariffs for AQP services
Best Value for non-tariff services
9. Care Quality Commission
Regulates quality and safety of care providers
Approval of care providers
Fitness to practice
Safety of premises and equipment
Infection control, safeguarding + risk management
10. Health Watch
Health Watch England is a sub-committee of Care Quality
Commission
Local Health Watch are networks of local corporate bodies
Remit is to:
be a voice for NHS patients
investigate and report on effectiveness of delivery of
services
provide mechanism through which informed public
opinion influences regulation
11. Local Authorities/Health and Wellbeing Boards
Local authorities will lead on public health with funding
and support from Public Health England
Health and Wellbeing Boards will encourage
commissioners to work together in integrated manner and
will lead on local public involvement – CCGs must involve
them before publishing annual plan
Will develop a joint health and wellbeing strategy
Board to include local authority members, plus heads of
social care, children's services, public health, CCGs,
Health Watch and NHS Commissioning Board
12. How will CCGs be Established?
Application to the NHS Commissioning Board by two or
more persons who are providers of primary medical
services
Proposed area of operation
Name of accountable officer and other prescribed info
Draft constitution with proposed name and policies to
avoid conflict of interest.
Regs will set out criteria Board must consider before
approving
13. Funding Arrangements for CCGs
Annual funding from NHS Commissioning Board
CCGs must balance the books over the year (controlling
the behaviour of member practices?)
Additional incentive payments? No details as yet.
14. Key Commercial and Governance Issues
Workforce issues
Existing property and contracts
Public law duties
Managing conflicts of interest
15. Workforce Issues
Will TUPE apply to transfer existing PCT staff?
Is there a transfer or a ‘service provision change’?
How will NHS pension membership be addressed?
16. Existing Property and Contracts
Are we taking on onerous liabilities? Proper due diligence
required
Could we source premises, equipment and back-office
services more cost-effectively?
Can we negotiate protections for pre-transfer liabilities?
17. Public Law Duties
Freedom of Information Act applies?
CCGs susceptible to judicial review?
Human Rights Act challenges?
Equality & Diversity obligations
18. Managing Conflicts of Interest
CCGs constitution should detail duty to act with integrity
and transparency
Declaration of Interests
Appointment of independent non-executives
Rigorous procurement procedures
19. Concluding Remarks
The system is complex
There is a risk that bureaucracy could stifle autonomy and
innovation
There is much detail to fill in through Regulations
20. Creating Partnerships for Public Services
Public-Private Partnerships
PFI & Project Finance Innovative Legal Solutions
Outsourcing for
Partnerships
Joint Ventures
in Public Services
Development & Regeneration
Charities & Not-for-Profit
Social Enterprises
Transaction Management
Training & Capacity Building
TPP Law Limited t 020 7 620 0888
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