Written evidence from The King's Fund
(CFI 10)
The King's Fund is a charity that seeks to understand
how the health system in England can be improved. Using that insight,
we help to shape policy, transform services and bring about behaviour
change. Our work includes research, analysis, leadership development
and service improvement. We also offer a wide range of resources
to help everyone working in health to share knowledge, learning
and ideas.
SUMMARY
— Many
GP commissioning consortia will need considerable support from
the NHS Commissioning Board, particularly during the first years
after formal establishment. Unless there is a robust process of
self-assurance and an accompanying developmental programme, the
Board may be drawn into top-down performance management.
— The
Secretary of State retains considerable powers of intervention
under the Health and Social Care Bill. The pressure to use these
will be intense unless consortia and the NHS Commissioning Board
perform consistently highly.
— Consortia
must be given stronger requirements to involve other professionals
in commissioning, and in doing so should be encouraged to work
with clinical networks.
— The
Bill creates insufficient mechanisms and incentives for integrating
commissioning across health and social care. Monitor should be
given a specific duty to promote collaborative working as well
as competition.
— Commissioning
processes must be transparent if consortia are to manage conflicts
of interest without creating unnecessary bureaucracy.
— Stronger
obligations are needed to guarantee adequate patient and public
involvement in commissioning.
— We
remain highly concerned that it will be difficult for commissioning
consortia to drive much-needed large-scale reconfiguration within
secondary care.
— Choice
of "'any willing provider" may be appropriate in some
clinical areas but not in others, and should not be allowed to
undermine commissioner purchasing power.
THE ASSURANCE
REGIME FOR
CONSORTIA
1. The Committee's previous report on commissioning
highlighted the critical importance of creating a sufficiently
robust assurance regime for GP consortia, and we would strongly
endorse this point. Consortia will be held to account principally
by the NHS Commissioning Board (NHSCB), through an annual performance
assessment, and rewarded for good performance with a "quality
premium" incentive payment.
2. The Health & Social Care Bill allows some
flexibility in terms of how the NHSCB interprets its relationship
with consortia. Its most direct powers of intervention can only
be deployed in two circumstances:
— When
a consortia is failing to discharge any of its functions.
— When
a consortia is at "significant risk" of failing to do
so.
3. However, the Bill also confers broader powers
which could see the NHSCB become much more than a safety-net for
isolated cases of failure, and it is highly likely that it will
need to do so. For example, it has powers to issue commissioning
guidance which consortia would be legally bound to have regard
to. David Nicolson has indicated his preference for the NHSCB
taking a wider role in offering proactive support, writing in
a recent letter to the NHS that the NHSCB "will offer a spectrum
of support, from empowering and facilitating success, to intervening
to support consortia in difficulty".
4. While we believe the overall relationship
between the NHSCB and consortia should be "supportive"
rather than managerial, it may be necessary and appropriate for
the NHSCB to assume a more hands-on role in the first few years
after consortia formally take on their responsibilities, potentially
working with or through PCT clusters. This could include directly
commissioning those services which consortia are not yet ready
to accept financial responsibility for. It is likely that there
will be a substantial number of consortia which perform relatively
poorly but which do not meet the threshold for formal intervention
by the NHSCB. There will need to be an appropriate developmental
programme in place to help these consortia make improvements,
perhaps including 'mentoring' from more advanced consortia.
5. The annual performance assessment process
developed by the NHSCB, along with any commissioning guidance
it publishes, must be designed to be of use to consortia themselves.
The assessment should be a developmental aid more than a performance
management tool, the aim being to help consortia to clearly identify
what their weaknesses are, and what developmental support they
might need to address these weaknesses. Consortia must be able
to translate their performance in the annual assessment into practical
action. Focusing the assessment process exclusively on outcomes
may not be sufficient to give consortia a detailed diagnosis of
how they need to change. An assessment of core commissioning competencies
would be of much value to consortia, particularly in the early
years when they are developing skills and capacity.
6. If the assurance regime fails to enable consortia
to assess and respond to their skills gaps and organisational
weaknesses themselves, a return to top-down performance management
may be inevitable. Our view is that a wholesale reversion to performance
management would be regrettable - but that there are some functions
that the NHSCB should be performing on an ongoing basis, such
as the development of national standards and template contracts.
7. The authorisation process for consortia will
be a key part of quality assurance for GP commissioning. Getting
this process right will be an early challenge for the NHSCB. In
stark contrast with the authorisation process developed by Monitor
for aspiring Foundation Trusts, consortia will be new organisations
with no track-record they can be judged against. The skills they
need will also be new - and different to those required in the
past by PCTs. This leads to the conclusion that for some consortia,
authorisation may need to be a phased process rather than a one-off
event, with responsibilities being transferred incrementally over
time.
8. Given the relatively small scale of many consortia,
it is highly likely that some services will need to be commissioned
collaboratively by inter-consortia partnerships, potentially at
multiple co-existing levels. This introduces another element of
complexity into assurance arrangements. It is not clear how the
quality of inter-consortia commissioning will be assured, and
how good or poor performance will be attributed to actions taken
at this level versus the individual consortia level.
9. A priority for the NHSCB will be to develop
a clear failure regime for consortia whose performance is poor
enough to warrant intervention. The Bill gives the NHSCB power
to intervene in a range of ways, including ultimately the power
to dissolve a consortium and pass its functions to other consortia
or take them on itself. The NHSCB will need to establish a rules-based
system describing with greater precision how and when its various
powers will be used.
ACCOUNTABILITY AT
THE NATIONAL
LEVEL
10. The Committee raised concerns about the potential
for conflict between the NHSCB, Department of Health and Secretary
of State, and the need for clear lines of accountability to prevent
this.
11. Under the Bill, the Secretary of State retains
considerable powers over the NHS. For example, in the annual mandate
between the Secretary of State and the NHSCB, the former is able
to specify not only the objectives that the NHSCB should seek
to achieve, but also "any requirements that the Secretary
of State considers it necessary to impose on the NHSCB for the
purpose of ensuring that it achieves those objectives". The
Bill also allows for secondary legislation which would allow the
Secretary of State to set a number of other requirements relating
to the operation of the NHSCB, and with Parliamentary approval
could require the NHSCB or consortia to do anything considered
"necessary for the purposes of the health service".
12. The Bill therefore leaves room for the relationship
between the Secretary of State and the NHSCB (as well as that
between the NHSCB and consortia) to have managerial elements.
The Department of Health has indicated that some of the powers
granted to the Secretary of State would only be used in exceptional
circumstances. However, if consortia or the NHSCB do not perform
consistently well, the pressure on the current or future Secretaries
of State to use the powers invested in them could be very strong.
In such a circumstance, the removal of the intermediate tiers
of NHS management (PCTs and SHAs), leaving national bodies interacting
directly with (potentially weak) local bodies, could result in
increased centralisation - in spite of the prevailing political
preference for the opposite.
13. Just as there is a potential for these arrangements
to lead to tensions between the NHSCB and Secretary of State,
there is also a lack of clarity in the relationship between the
Care Quality Commission and Monitor. The two regulators are charged
with safeguarding different aspects of system performance, and
it is not yet clear what the preeminent consideration will be
in situations where these diverge - for example, where promoting
competition and contestability is at odds with promoting quality.
Greater clarity is needed on how the two organisations will relate
to each other in the new system - and how both will relate to
the NHSCB.
MULTI-DISCIPLINARY
INVOLVEMENT IN
COMMISSIONING
14. We are concerned that the requirement in
the Bill for consortia to "obtain appropriate advice"
from other health professionals will not guarantee sufficient
multi-disciplinary involvement in commissioning. The government
must set out clear expectations that consortia will fully involve
hospital specialists, other clinicians and health and social care
professionals in their work. This could be through a legal duty
to involve such professionals, or a duty to report annually on
how they have been involved.
15. With real multi-disciplinary involvement,
commissioning consortia could become the focus for improved collaboration
and closer working between services and professionals. If, however,
commissioning is seen principally as the prerogative of GPs, there
is a risk of it widening the divisions that already exist. Research
shows that practice-based commissioning had exactly this effect
in areas where specialists and other professionals were not adequately
involved (Curry et al 2008).
16. Consortia should be encouraged to work closely
with existing clinical networks created as forums for multi-disciplinary
work. These broker care across providers for patients with particular
conditions, for example in cancer, cardiac and stroke care (Curry
& Ham 2010). Evaluations have demonstrated that such networks
can succeed in supporting professionals to build collaborative
relationships across organisational and professional boundaries
(Guthrie et al 2010). The NHSCB could set out expectations for
how consortia should work with multi-disciplinary networks in
core clinical areas.
17. Over time, some consortia may choose to go
further than this and develop into multi-professional organisations
which span the divide between commissioning and provision, on
a similar model to multi-specialty medical groups in the US. Some
of these groups have successfully taken on a budget for a defined
population, on behalf of the insurance companies with whom the
patients are enrolled. The groups consist of a network of specialists
and primary care doctors who are either directly employed by the
group, or contracted to work with them. The experience of these
groups suggests that multi-disciplinary commissioning could only
succeed in the UK if payment mechanisms were re-designed to support
such collaboration (Thorlby et al 2011, Ham and Smith 2010).
18. If consortia are to have sufficient focus
on the health of their local population as opposed to individual
clinical encounters, it is essential that public health specialists
are involved in their commissioning activities. We are concerned
that Health & Wellbeing Boards will have limited powers over
GP consortia, and that there may not be sufficiently close relationships
between consortia and public health specialists based in local
authorities. The lack of co-terminosity between local authority
and consortia boundaries will introduce a further barrier here,
making it harder for consortia to get access to the high-quality
public health data they will need to commission effectively.
INTEGRATION WITH
SOCIAL CARE
19. The Bill places duties on the NHSCB and Health
and Wellbeing Boards to promote integration between health and
social care and includes provisions to enable the NHSCB or consortia
to establish pooled funds. These provisions are welcome and should
encourage joint working across health and social care. We would
encourage the definitions of "health-related services"
and "social care services" in clause 179 to be widened
to capture the full range of health and wellbeing services. There
should also be an equivalent duty on GP consortia to promote integration.
20. However, integration across health and social
care will be compromised if the policy drivers of choice and competition
produce an increasingly fragmented array of competing public and
private providers (see also our response to the Greater Choice
and Control consultation). There is a duty on Monitor to promote
competition "where appropriate"; the definition of "where
appropriate" will be critical to ensuring that promoting
competition does not impede efforts to advance integration. Monitor
should also be given a specific duty to promote collaborative
working across health and social care.
21. The NHS, social care and public health outcomes
frameworks need to go further to support integration between the
sectors. Further work is needed to ensure that the outcomes frameworks
align. In the longer term, the creation of a single outcomes framework
across the three sectors would more effectively support integrated
working.
22. Under the current arrangements, PCTs and
local authorities have developed numerous ways of working in partnership,
resulting in better co-ordination of services. Ensuring good practice
is carried forward through the transition will be critical, but
it is unclear how realistic it will be to achieve this given the
speed and scale of the reforms. The loss of the co-terminosity
between local authorities and commissioners may create practical
barriers to joint working (see our response to the Information
Revolution consultation) and we fear that progress made to
date in improving integration could be reversed.
23. It is difficult to interpret what impact
the changes to the legislation on Care Trusts (clause 184) will
have on integrated working. However, we caution against any provisions
which might lead to dissolution of arrangements in those places
where Care Trusts have worked well, such as Torbay - the benefits
of which are described in a forthcoming report by The King's Fund.
CONFLICTS OF
INTEREST
24. The Bill requires that consortia include
in their constitution details on managing the conflicts of interest
which will inevitably arise from GPs' dual position as commissioners
and providers of services. What should be included in this is
not specified in the Bill, although the Government's response
to the Committee's previous inquiry suggests that there is likely
to be secondary legislation and/or guidance on consortia's internal
governance arrangements in due course (paragraph 68).
25. It would not be in patients' interests for
regulations/guidance on conflicts of interest to be unduly restrictive.
A major benefit of GP involvement in commissioning is the potential
for GPs to design and commission innovative forms of expanded
primary care provision and new models of care in the community.
An appropriate balance needs to be struck which does not risk
stifling this potential for creativity under the burden of highly
bureaucratic processes or complex procurement and tendering rules.
26. What is imperative is that the arrangements
that are developed maximise transparency. Transparent reporting
of the commissioning decisions taken, and how these are reached,
will provide the strongest safeguard ensuring public money is
used appropriately. There are several practical ways this could
be implemented (see Ham et al 2011):
— Requiring
consortia to have public representation in their boards or other
management structures.
— A requirement
to publish commissioning decisions above a defined value.
— Application
of open-book accounting principles.
— Establishing
processes through which aggrieved parties can ask for commissioning
decisions to be reviewed.
— A requirement
for GPs to declare financial interests in provider organisations.
— Development
by the NHSCB of a list of enhanced services that consortia are
able to commission from practices without using tendering processes.
27. In the context of this need for transparency,
the limited requirements being placed on consortia are a cause
for concern. The Bill requires that consortia publish their constitution,
commissioning plans and remuneration arrangements, and that they
hold an annual general meeting open to members of the public.
These requirements are helpful but do not go far enough - particularly
with respect to patient/public involvement (see below).
PATIENT/PUBLIC
INVOLVEMENT IN
COMMISSIONING
28. Arrangements for patient/public involvement
in commissioning are already weak under the existing system, and
there is a significant risk that the reforms will weaken them
further. By placing no specific obligations on consortia, the
Bill fails to give patients and members of the public meaningful
powers within the commissioning system. Consortia are to have
a duty to involve patients in decision-making, but involvement
here can mean as little as "being consulted or provided with
information". The power of local HealthWatch groups over
consortia will be limited to a scrutiny function, and Local Authorities'
ability to refer reconfiguration decisions to the Secretary of
State is to be restricted to designated services.
29. The Bill does permit the NHSCB to publish
further guidance on patient involvement, to which consortia will
be obliged to have regard. The NHSCB should be encouraged to do
so, and as stressed above, the most important principle in such
guidance should be that of transparency. Patients and members
of the public must be able to see how and why decisions relating
to the commissioning of services in their area are reached.
30. Without meaningful accountability to local
people, we can anticipate many legal challenges being made to
commissioning decisions. This can be pre-empted, and the associated
expenses reduced, through effective patient/public involvement
from the outset.
31. Patient/public involvement should build on
examples of good practice developed by practice-based commissioning
consortia. For example, the constitution of "Principia Partners
in Health" in Nottinghamshire guarantees that half of the
members of the company's Board of Directors are members of the
public, and "lay" members have voting rights at the
annual meeting (Parsons et al 2010). The community membership
models developed by Foundation Trusts may provide further examples
of good practice (Ham & Hunt 2008). Involving local condition-specific
groups and community organisations in the commissioning process
may also provide an effective mechanism for giving patients and
members of the public a stronger voice (NHS Alliance 2010).
SERVICE RECONFIGURATION
32. We remain concerned that it will be difficult
for commissioners to drive major reconfiguration within secondary
care in the absence of PCTs and SHAs or equivalent local system
leadership. The Bill enables consortia to collaborate in order
to address issues too large for any one consortium to tackle alone.
However, there is a danger that allowing such collaboration to
happen organically will mean that the pressing need to reconfigure
hospital provision in some areas will not be addressed quickly
enough, if at all.
33. A related concern is that consortia will
pursue commissioning strategies which make financial sense from
their own perspective but could represent very poor value for
money for the local health economy as a whole. This could risk
de-railing crucial efforts to improve productivity in the NHS.
34. The Government's response to the Committee's
previous inquiry indicates that there may be a role for the NHSCB
in supporting consortia in service reconfiguration (paragraph
93). It is possible that regional tiers of the NHSCB will provide
the local system leadership that currently appears to be lacking
in the proposals. In the more immediate future, it seems likely
that reconfiguration will be driven principally by secondary care
providers themselves, seeking to make efficiencies in response
to the intense financial pressure they are under.
35. The designation process, by which Monitor
will ensure the continuity of certain "essential" services,
may complicate attempts to reconfigure hospital services. The
financial and practical interdependency of different service clusters
means that designation can be expected to have knock-on effects
on other services, whose removal would make the designated services
unsustainable. Designation is expected to be led by consortia,
which will apply to Monitor for local services to be granted designated
status. This process could have a major impact on the range of
services available in local areas, again underlining the importance
of giving patients and members of the public a strong voice within
consortia. Both consortia and Monitor will need to strike a careful
balance between maintaining access to essential services and avoiding
creating a system with undue barriers to beneficial change.
TENSIONS BETWEEN
PPATIENT
CHOICE AND
COMMISSIONING
36. Giving patients choice of "any willing
provider" has the potential to weaken commissioners' hands
in negotiations with service providers. A commissioner's power
is based to some extent on their ability to negotiate and selectively
contract with certain providers to deliver services under defined
terms. Under the any willing provider model, a provider's
income is determined by the sum of individual patients' choices
rather than by agreements with commissioners (which could not
specify contract volume or expected income). There is some risk
that this could weaken commissioners' ability to influence provider
behaviour or specify innovative service models. Patient choice
could also compromise the commissioner's ability to control their
budget. There is therefore a need to strike a balance between
commissioning and patient choice as two alternative means of driving
service improvement.
37. We recognise the benefit of offering greater
choice to patients in elective care and would like to see greater
choices being offered to patients with long term conditions, as
well as in mental health, maternity and end of life care services.
We would recommend that the extension of choice in these areas
is managed carefully by the NHSCB and Monitor, and have suggested
ways that this could be achieved in our response to the Greater
choice and control consultation. However, we also stress that
complex services such as those for trauma or cancer need a co-ordinated
approach across providers. Quality has been demonstrably improved
by focusing care within centres of excellence and creating networks
of providers - an approach which necessarily reduces the extent
of choice for patients. A market that encouraged multiple new
entrants to offer such services would not be good for patients,
or financially beneficial for commissioners. GP consortia should
be supported to develop integrated care networks with acute and
community providers. Patients could then be offered choice between
integrated delivery systems - although this scenario may take
some years to develop (Curry & Ham 2010).
38. The devolution of commissioning budgets to
GP consortia, combined with free choice of GP, will mean that
for the first time in the NHS patients will have de facto choice
of commissioner. If consortia make significantly different decisions
about their clinical and financial priorities, patients may decide
to register with a different practice in order to access a different
range of treatment options. It is unclear whether this will impact
positively or negatively on equity of access, or on health inequalities
- there is a risk that those who are more able to navigate the
system may be able to get greater access to their preferred treatment
options. Choice of commissioner could also have other implications
such as the potential for adverse selection or "cream skimming".
39. An additional dimension
to this debate relates to GP consortia assuming the drug rationing
responsibilities previously held by NICE. There is a risk of the
patient-doctor relationship being compromised by this arrangement
if a patient suspects their GP is making prescribing decisions
based on financial rather than clinical considerations. There
is a strong argument for retaining a central mechanism for evaluating
the cost-effectiveness of interventions and issuing guidance on
this, on the grounds that devolving all rationing decisions to
the local level would be inefficient, impose significant burdens
on consortia, and could exacerbate the "postcode lottery"
in availability of treatments.
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February 2011
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