Legislative Reform (Clinical Commissioning Groups) Order 2014

Earl Howe Excerpts

Tuesday 24th June 2014 Grand Committee

Moved by

[Earl Howe]

That the Grand Committee do consider the Legislative Reform (Clinical Commissioning Groups) Order 2014.

Relevant document: 26th Report, Session 2013-14, from the Regulatory Reform Committee

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, this draft legislative reform order would amend the National Health Service Act 2006 in two ways. First, it would allow clinical commissioning groups—CCGs—to form a joint committee when exercising their commissioning functions jointly. The NHS Act already allows two or more CCGs to exercise their commissioning functions jointly, but does not make any provision for them to do so via a joint committee. Secondly, it would allow CCGs to exercise their commissioning functions jointly with NHS England, and to form a joint committee when doing so. The Act already allows NHS England and CCGs jointly to exercise an NHS England function, and to do so by way of a joint committee, but it makes no provision for them jointly to exercise a CCG function.

This draft order has already been scrutinised by the Delegated Powers and Regulatory Reform Committee and I was pleased with its recommendation that it should continue under the affirmative resolution procedure. I hope it will assist the Committee if I set out the need for these proposals.

I emphasise from the outset that the proposed arrangements are voluntary. One party cannot impose the arrangements upon another. This allows CCGs to retain their autonomy and to continue to make decisions that are in the best interests of their local populations. At the moment, the lack of provision for CCGs to form joint committees is placing a burden on CCGs and preventing them from working in the most effective and efficient way. Without the power to form joint committees, CCGs have had to find other means of reaching joint decisions which are binding. As an interim measure, some CCGs are forming “committees in common”, whereby a number of CCGs may each appoint a representative to a committee in common; those representatives then meet, and any decisions that are reached are taken back to their respective CCG for ratification. This leads to costs in people’s time to sit on multiple committees and administrative resource, as well as extra financial costs.

For example, I am aware of the limitations that the current commissioning arrangements are having on the East of England Ambulance Service. NHS Ipswich and East Suffolk CCG is lead commissioner for ambulance services across the east of England, and the remaining 20 CCGs in the region are associates to that commissioning arrangement. The CCGs established a commissioning consortium, which brings together all 21 CCGs to discuss both delivery against the ambulance contract and future strategy for ambulance services. However, due to the restrictions of current legislation, the consortium itself is not delegated any decision-making authority. While most CCGs party to the consortium have delegated a level decision-making authority to the individual officers who attend the consortium, the contract with the ambulance service is large, and decisions may exceed delegated limits. In those instances, decisions must be referred to CCG governing bodies, introducing a delay to the decision-making process.

Clearly arrangements such as these are burdensome, particularly when compared to the simplicity of a joint committee. Primary care trusts, the predecessors of CCGs, were able to form joint committees at which, subject to the terms of reference, all participating PCTs were bound by the decisions reached. We therefore want to allow CCGs a route in which, when they are collaborating with other CCGs, they can take decisions in a properly constituted forum. Furthermore, CCGs when agreeing to form a joint committee will have the freedom to agree terms of reference, including voting arrangements. This will not dilute the emphasis of local decision-making.

Similarly, the lack of any power for CCGs to exercise their functions jointly with NHS England is also causing inflexibility. NHS England and CCGs may wish to act jointly to commission better out-of-hospital services, for example. Making sure that services are integrated around the needs of the patient is the best way of ensuring that care is provided in a safe and compassionate way that most benefits the person. This amendment would allow CCGs and NHS England, as co-commissioners, to develop and agree strategic plans and delivery processes that take into account the effects of services across a whole pathway, facilitating design and continuity of services across primary, secondary and community care.

For example, CCGs and NHS England may wish to review service delivery across specialised services, commissioned by NHS England, and any impact redesign may have on non-specialised acute services, commissioned by CCGs, in order for services to be designed and delivered to achieve the best possible outcome for the population served. The inability of NHS England and CCGs to jointly exercise a CCG function and to form a joint committee when doing so makes it more difficult to make timely decisions, which can delay the ability to improve patient safety. Furthermore, the amendments would encourage the formation of new commissioning partnerships, allowing the most effective approach to be used.

The amendments would build upon them by giving CCGs greater flexibility and control in the way that they work. As CCGs become more established organisations, they need to have more flexibility to work together, and with NHS England. In any commissioning structure you have in place, there are always going to be some decisions that may need to be taken locally and some that span a wider population.

CCGs are still accountable as individual organisations. Joint arrangements mean that each CCG is still liable for the exercise of its commissioning functions, even where they are being exercised jointly with another CCG or NHS England. These proposed arrangements will not lead to reconfiguration by the back door. The purpose of these changes is to support more effective joint working and to allow discussions about service redesign to take place across the health economy. The proposed changes will not affect the existing processes and tests that any significant service redesign needs to follow. I beg to move.

[Baroness Brinton (LD)]

My Lords, the NHS Act 2006 started us down the route of commissioning; obviously, with the updating and creating of clinical commissioning groups under the Health and Social Care Act 2012, we are still moving into fairly new territory. Inevitably, CCGs are feeling their way in the new structures, including joint working. I am pleased that the order will now legislate more formally for CCGs to work closely with each other and with NHS England, and to jointly commission where appropriate.

One of the many reports that come back to your Lordships’ House from CCGs and NHS trusts is the desire to gold-plate any system with legal advice. For example, we know that the Health and Social Care Act enabled tenders to be taken for quality and efficacy, not just on cost, as under the 2006 Act, yet we hear time and again that lawyers tell commissioners that cost is the most important point. I also welcome the issues around CCGs and National Health Service England overlapping. The Minister referred to some of those; it is also important where there is a pathway in rare diseases, where there may also be some linkages with CCGs perhaps implementing at a lower level. That will smooth the way for that to work well.

To this non-lawyer at least it seems extraordinary that CCGs could not form joint committees to commission over boundaries. This draft order now makes it crystal clear that joint commissioning and the arrangements for ratification by the separate CCGs are not just acceptable but welcome. It is encouraging to see in the accompanying notes that the consultees to this order also see it as a cost-efficient measure; I add to that smoother working systems and, most importantly, joined-up services for users of the NHS.

[Lord Hunt of Kings Heath (Lab)]

My Lords, on the face of it the order is unexceptional, although I agree with the noble Baroness that CCGs have got themselves into a ludicrous state of getting legal advice on almost everything. It is patently obvious that there are ways in which they can come together to make decisions. We also see that as regards tendering, where, despite the commitments the noble Earl made, we see CCGs absolutely panic-stricken about making a decision not to tender out services. If ever one wanted evidence of the foolishness of the arrangements we now have, it would be the kind of reaction we are seeing from CCGs.

I will ask two or three questions on the order. I noted in paragraph 4.6 of the consultation paper that the department points out that there was opposition to the proposal to enable CCGs and NHS England to form joint committees. I understand that while it is mainly about CCGs forming joint committees, they can also form a joint committee with NHS England. The necessary protection is laid out in paragraph 3.6 of the paper we received, which says that:

“The Minister considers that the proposals maintain the necessary protections. CCGs enjoy a degree of autonomy”.

I thought that they were going to be autonomous, but there we go; it has been qualified in that document. The paragraph goes on:

“To this end, NHS England is under a duty … to promote the autonomy of persons exercising functions in relation to the health service. The wording of the proposed amendment to section 14Z9 is designed to ensure that a CCG function can only be jointly exercised with NHS England where both parties are in agreement, thus preserving a CCG’s autonomy”.

I put the point to the noble Earl that if you talk to CCGs, they do not feel autonomous, because they are used to being beaten up by NHS England—receiving incessant phone calls from the local offices of NHS England—and they and the accountable officer find themselves under huge pressure when there are problems with the system. Therefore the idea that there is an equal partnership between NHS England and the CCG as regards a joint committee is simply not believable. Clearly, local area teams will use that mechanism to force CCGs into joint committees and then force decisions through. I would have thought that that is patently obvious from what is happening in the field in the National Health Service. I would be grateful to hear the noble Earl’s comment on that.

Of course, I have no problem about CCGs working together so that we can get rid of some of the current fragmentation. If we take my own patch of Birmingham, where three and a half CCGs cover the city, there is no chance, it seems, of actually having a strategy for the city which can embrace all the trusts and commissioners unless it is done jointly. I would like to hear from the noble Earl how in fact this mechanism is going to be used to encourage CCGs, which are patently too small in many areas, to come together so that we get some decent strategic planning instead of the fragmented and inadequate contracting process that so many CCGs are undertaking at the moment.

I would also like to ask the noble Earl about consultation when decisions are made by a joint committee. I assume that the consultation rights and responsibilities would apply to a joint committee as much as they do to an individual CCG but, as there is scant evidence of CCGs undertaking proper consultations, I suppose that that is not much comfort. It would be good to hear a little more about how CCGs are going to work this. I must say that after two years of this wonderful new system, I am still waiting for a letter from my CCG saying that it actually feels some form of accountability to me as an individual, but alas that letter has yet to come. From the legal cases which have been brought against some CCGs, it is clear that they do not have any sense of accountability to their local population. That is not surprising because they are membership organisations. They are owned by GP practices, which are the members of the organisation.

This morning I listened to Simon Stevens, appearing before the Public Administration Select Committee, talk about the proposal to hand over some of the contractual responsibilities of NHS England to CCGs. So, in effect, not only are the CCGs membership organisations, they are now going to be given co-power with NHS England to contract with the individual members of the organisations in relation to primary care services. I can well understand why the local area teams do not have the capability to manage the primary care contract. It was patently obvious that they were not going to do so. But what it comes back to is that the governance of CCGs is hopelessly compromised. They ought to be public bodies with much greater lay representation. If they were, we would have much more confidence in the arrangements, but they are not. They are dominated by contractors who have a vested interest in the decisions made by those clinical commissioning groups.

Finally, I turn to page 3 of the impact assessment that provides the evidence base for the supporting paper. It is implied that decisions to deal with specific funding requests might be dealt with by a joint committee. That, of course, is a euphemism for rationing services. Again, we know that some CCGs are making highly dubious decisions about restricting patient services to which NHS patients are entitled. I would like some reassurance that if the joint committee is going to do this, it will be done in public, not behind closed doors, and after full consultation. Recently I have been particularly concerned about evidence which shows that NICE technology appraisals are not being fully implemented in the National Health Service. I remind the noble Earl that it is a legal requirement for a NICE technology appraisal to be fully implemented by the NHS. Again, I would like to hear what the Government are going to do to ensure that CCGs actually play fair by the public and do not unnecessarily restrict treatments.

The order itself is unexceptional and it is supported, but I have to say that the performance of some CCGs leaves a lot to be desired. It is because of the potential of the joint committees to make major decisions that I raise some concerns today.

[Earl Howe]

My Lords, I am grateful to my noble friend and the noble Lord, Lord Hunt, for their comments and questions. My noble friend was quite right to cite the example of rare diseases and specialised services as one which will be assisted by the order before us, because while we have a mechanism for NHS England and CCGs to get together to discuss these things, we lack the ability for decisions to be taken about the whole patient pathway. This, of course, is vital when we look at the aspiration to join up services for the benefit of patients—not just the specialised care they receive in a centre of excellence, but also the follow-on care that they receive in the community. I therefore share my noble friend’s welcome for this aspect of the order.

I turn to the questions put by the noble Lord, Lord Hunt. A key plank of the Government’s reforms was to increase clinical commissioning. We do not want to depart from that, or from the principle of giving clinical autonomy to those who run clinical commissioning groups. We want to encourage them to enter into arrangements that have the buy-in not just of the local GPs, but of health professionals in their local area and the local authority. We have been clear on the need for a different splitting out of the commissioning functions—for example, to avoid CCGs commissioning individual GP practices and the conflicts of interest that may arise. The arrangements for safeguarding against conflicts of interest are still in place, but what we hear is that as organisations become more established they need a bit more flexibility to work together. In any commissioning structure, there is going to be that need and this order is about allowing those CCGs to work more efficiently. I emphasise that point about allowing them and not requiring them to do so. There is no compulsion about this. The noble Lord indicated that he felt that CCGs do not feel autonomous. I am surprised to hear that, because the arrangements that we have put in place are designed to ensure that local area teams of NHS England are there to support CCGs, not to oppress or breathe down their necks. That is my experience as I go about the health service. This is about joint working and taking decisions together in the best interests of patients.

The noble Lord asked me about transparency. CCGs are under certain duties with respect to patient involvement and transparency when they exercise their functions. Those duties would continue to apply when they exercise their functions jointly with other CCGs. The duty to consult still applies. CCGs will be under the statutory obligations as to patient and public engagements. However, it will be up to committees to agree precisely how they will work in accordance to their obligations. Some consultation responses that we received refer to committees in common that meet in public. Joint working does not have to entail working behind closed doors.

The noble Lord asked about NICE technology appraisals. He is right that some CCGs are slower than they should be under the legal provisions that pertain to adopting and commissioning approved technologies flowing from NICE. To shine a light on that, as he may know, under the Innovation Health and Wealth provisions, we have the NICE implementation collaborative, which is the mechanism designed to measure the extent to which local commissioners adopt approved technologies. The innovation scorecard is also designed to show how innovation in various forms is being rolled out and diffused across the NHS. I believe that mechanisms such as these will be enormously helpful in exposing the laggards in the system.

I hope that I have answered the noble Lord’s questions. I shall write to him if I have failed to cover any substantive point.

Motion agreed.