2 Description of the draft Order
4. The National Health Service Act 2006, as amended
by the Health and Social Care Act 2012 ("the 2006 Act, as
amended"), established the NHS Commissioning Board (known
by its operating name NHS England) and Clinical Commissioning
Groups (CCGs). NHS England is responsible for commissioning primary
care in England, for certain specialised services, and for supporting
CCGs in the discharge of their commissioning duties. There are
211 CCGs, which together cover the geographical area of England.
The members of a CCG are the providers of primary medical services
(GP practices) within its area. Each CCG is responsible for the
commissioning of health services for people within its area, under
sections 3 and 3A of the 2006 Act, as amended. The services commissioned
by a CCG are broadly termed 'secondary care',[3]
although that term does not appear in legislation.
5. The draft Order includes two proposals which the
Department states would facilitate joint commissioning by CCGs.
Both the proposals in the draft Order are voluntary.[4]
6. Proposal A in the draft Order would enable two
or more CCGs to form a joint committee. Section 14Z3 of the 2006
Act as amended allows two or more CCGs to exercise their commissioning
functions jointly, but there is no express provision within the
2006 Act as amended to enable them to form joint committees when
doing so. The Department states that as an interim measure, some
CCGs have formed "committees in common" in order to
exercise their functions jointly, but that this arrangement "is
cumbersome and a hindrance to effective joint commissioning by
CCGs".[5] The Department
explains:
A committee in common involves each CCG making arrangements
in its constitution for an employee or member of the group to
exercise the group's functions (see Schedule 1, paragraph 3, of
the NHS Act). Those individuals then meet in a committee in common
to collaborate on the joint exercise of their functions, but they
will be acting individually (i.e. as individual representatives
of their respective CCGs) and not collectively. This means that
any decisions, to be properly effective as jointly binding decisions,
have to be taken unanimously, in most cases. The Department is
aware of an arrangement which would allow for majority voting
by a committee in common which involved a separate legal agreement.
When Primary Care Trusts (the predecessors to CCGs
for these purposes) formed joint committees they would typically
each nominate a representative to attend that committee. It was
open for the Terms of Reference of the committee to provide for
majority decision making. Together, this meant that each PCT could
express its views on a matter, but that a majority decision was
binding on all. The amendments proposed by the LRO would enable
this to happen for CCGs (see further, the response to question
5) where agreed.[6]
7. Proposal B in the draft Order would enable CCGs
and NHS England jointly to exercise a CCG commissioning function
and to form a joint committee when doing so. The Department states
that at present section 13Z of the 2006 Act as amended enables
NHS England to exercise its own functions jointly with a CCG and
form a joint committee when doing so, but that there is no similar
provision for CCGs and NHS England to jointly exercise a CCG function.
- The draft Order extends to England and Wales.
However the Department states that its actual application is limited
to England only because NHS England and CCGs exercise functions
in relation to the health service in England only. The Department
states that officials of the Welsh Assembly were kept informed
of the Order; were invited to respond to the consultation; and
have advised that a Statutory Instrument Consent Memorandum is
not required.[7]
3 Explanatory Document, paragraph 2.2 Back
4
See Annex, Letter from the Department of Health to the Committee,
8 April 2014 (Q5) Back
5
Explanatory Document, paragraph 2.5 Back
6
See Annex, Letter from the Department of Health to the Committee,
8 April 2014 (Q2) Back
7
Explanatory Document, paragraph 3.13 Back
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