Cross-border health arrangements between England and Wales - Welsh Affairs Contents


3  Funding and Commissioning

17. Health services in England and Wales are subject to different funding and commissioning arrangements, which can result in confusion and misunderstanding by patients, and indeed sometimes by staff. We have sought to shed light on the arrangements for funding of cross-border healthcare.

Commissioning arrangements

18. In England, 211 Clinical Commissioning Groups (CCGs), overseen by NHS England, are legally responsible for the commissioning of health services. CCGs are clinician-led groups that include all of the GP groups in their geographical area. The aim of this is to give GPs and other clinicians the power to influence commissioning decisions for their patients.[16] Clinical commissioning groups work with patients and healthcare professionals and in partnership with local communities and local authorities. CCGs operate by commissioning healthcare services including: elective hospital care; rehabilitation care; urgent and emergency care; most community health services; and mental health and learning disability services.

19. In Wales, seven Local Health Boards (LHBs) are responsible for planning and delivering medical services, and aim to integrate specialist, secondary, community and primary care and health improvements. In general, this means that LHBs are largely responsible for commissioning all primary and secondary care. Tertiary and highly specialised services are commissioned in Wales through a joint committee: the Welsh Health Specialised Services Committee (WHSSC). A diagram showing the structure of NHS England and NHS Wales is below.

Structure of the NHS in England

Source: House of Commons Library

Structure of NHS in Wales

Source: Wales Audit Office

Cross-border Protocol

20. The Protocol for Cross-border Healthcare Services[17] sets out which body is responsible for commissioning care for people who live on one side of the border, but are registered with a GP on the other.[18] The protocol provides that the operational responsibility for commissioning services for a patient is determined by GP registration, rather than residency. Under the protocol, Welsh residents who are registered with an English GP or English-registered GP are 'English' patients. Likewise English residents who are registered with a Welsh GP or a Welsh-registered GP are considered 'Welsh' patients.

21. Paragraph 11 of the protocol summarises the commissioning and healthcare planning responsibilities and legally responsible bodies.
Residency GP Location Commissioning/healthcare planning responsibility Legally Responsible Body
WalesWales LHBLHB
EnglandEngland CCGCCG
WalesEngland CCGLHB
EnglandWales LHBCCG

22. Paragraph 16 of the protocol summarises what patients should be able to expect in terms of standards for access to health care dependency on residency, GP location and provider:
Residency GP Location English Provider to meet: Welsh Provider to meet:
WalesWales WG standardsWG standards
EnglandWales WG standardsWG standards
EnglandEngland NHS ConstitutionWG standards
WalesEngland NHS ConstitutionWG standards

Compatibility of the Cross-border Protocol and NHS Constitution

23. In England, the Health and Social Care Act 2012 and the NHS Constitution gives certain rights to English residents, including the right to choose their hospital, and sets maximum waiting times targets.[19] However, as we have set out earlier in this Chapter, English residents who have a Welsh GP or a Welsh-registered GP are considered 'Welsh' patients and therefore treated to Welsh Government standards.

24. Witnesses told us that English law and the cross-border protocol were incompatible, and had led to English residents being denied their legal rights. Action4OurCare[20] said that:

    The Health and Social Care Act is really clear. It applies to absolutely everybody who lives in England. The cross-border protocol has overwritten that, but it has no authority or mandate to do so. The legislation should stand for the English and for the Welsh Government. You should make sure that, whatever you do with devolution, you do not deny English residents their rights.[21]

25. Witnesses told us that this particularly affected residents in Hereford and Gloucestershire. Jesse Norman MP explained that over 3,500 patients in Hereford had no choice but to register with a Welsh surgery as they lived in a location not served by an English practice.[22] In Gloucestershire, approximately 10,000 patients are affected, while residents in Gloucestershire also face the situation that a number of GP surgeries, while physically based in England, are registered in Wales.[23] At our public sessions, some attendees resident in England told us that when they had requested a transfer to a GP's surgery in England, they had been turned away.

26. In oral evidence, Mr Norman called for English rights under the NHS Constitution to be recognised under the protocol:

    I am just insisting on the very obvious […] point that if people live in England and have no choice but to use a Welsh GP, they should maintain their rights under the English NHS. They are owed that duty of care. There is a parallel case for Welsh patients who are in the other situation.[24]

27. Shropshire Clinical Commissioning Group commented that currently Welsh providers did not offer a dual service for the English-responsible patient and treated them with the Welsh targets "even though we would pay for it".[25] It told us that: "it is only a matter of time before an English resident who is registered with a Welsh GP challenges that".[26]

28. In response, Jane Ellison MP, Parliamentary Under-Secretary of State for Public Health, told us that she had established that there was an inconsistency between the protocol and the legislative position. She had written to Mark Drakeford AM, Minister for Health and Social Services in the Welsh Government, to raise the issue with him. She told us that there were three scenarios:

    As part of the work that we are taking forward with the Welsh Government, we want to resolve the problem around the rights of English residents. I can see three theoretical scenarios here. The first is that one attempts to close the border and accepts that the two systems are totally separate. It seems to me that that runs contrary to the whole spirit of the conversation that we have been having here this morning and to putting the interest of patients and communities paramount, so I do not think that is the right solution.

    The second approach is simply to recognise that English patients who are registered with Welsh practices do not receive their NHS constitution rights in relation to either a legal entitlement to choice or maximum waiting times. Clearly, that is very problematic and is not something that we can duck. We need to find a way of addressing that.

    The third option is that those patients who are registered with Welsh practices receive English standards and entitlements. That contrasts with policies of the Welsh Government as to the equal treatment of Welsh-resident and English-resident patients on a GP's list. We are working with the Welsh Government to try to resolve that conundrum.[27]

29. During our evidence session with Mr Drakeford, we asked whether the Welsh Government was prepared to recognise the rights that English residents are afforded under the Health and Social Care Act 2012. He told us that

    The system we have […] is that if you sign up with a Welsh GP you get the package that goes with that, and if you sign up with an English GP you get the package that goes with that. I understand that in England the Department of Health believes that this causes some difficulties to them in terms of English law. It causes no difficulties to us in Wales; but we are having discussions. […] I am happy to be as helpful as I can, but the problem is not mine, and the solution is not mine …[28]

30. There is an unresolved tension between the cross-border healthcare protocol and the Health and Social Care Act 2012. English patients registered with Welsh GPs or Welsh-registered GPs do not receive the same services as if they were registered with an English GP, and for the majority of people concerned, they will not have a choice of registering with an English GP.

31. The Department of Health should investigate the problem of why some patients living in England, currently being treated in the Welsh healthcare system and wishing to be treated in the English healthcare system, have been turned away by GP practices in England. This should be considered in light of the legal rights of these residents under the Health and Social Care Act 2012.

32. We recommend that the Welsh and UK Governments continue to work together to clarify what an English patient registered with a Welsh GP and a Welsh-registered GP, and a Welsh patient registered with an English GP and an English-registered GP, can expect.

Funding

Primary services

33. In the case of primary services provided across the border, which include GP services, dentistry, and ophthalmic services, there is no funding flow between England and Wales. The Department of Health told us that:

    … no transfers have ever been made between the English NHS and the NHSs in other parts of the UK to reflect the use residents of one part of the UK make of primary care services provided in another part of the UK.[29]

Any costs lie where they fall. This was described to us as a 'knock for knock' arrangement based on historical funding flows.

34. Mr Drakeford told us that this was a sensible way to do things. He explained:

    The alternative is to bill one another for all the different treatments that go on. My view is that that would create a big industry of accountants following bits of activity and we would end up paying more to create the system than we would save in other ways. On the whole, the system is satisfactory to both sides as it is. We pick up costs in Wales for some people who live in England, and the English system picks up some costs in England for people who live in Wales. Those costs are not sufficiently significant to erect an industry around them to pursue them in an accountancy way. The system broadly balances itself out.[30]

SECONDARY AND TERTIARY SERVICES

35. In the case of secondary care services provided to patients with a GP 'across the border', a net funding transfer is agreed annually between the Department of Health and the Welsh Government, in recognition of the additional secondary care costs that fall on the Welsh NHS. This is set out in the cross-border protocol, which confirms that there will be no financial shortfall on the part of any LHB or CCG in providing secondary healthcare services to the other country's residents.

36. The Welsh Government currently receives £5.8 million per annum from the Department of Health. This is based on 2008-09 calculations, when it was calculated that 20,000 English residents were registered with Welsh GPs or Welsh-registered GPs compared to 15,000 Welsh residents registered with English GPs, giving a net import of 5,000 English residents. This figure is then multiplied by the Hospital and Community Health Service (HCHS) spend per resident of £1,145.[31]

37. In oral evidence, the Welsh Government's Health Minister said that our investigations had helped "expose the fact" that the formula had not been updated since 2008. He suggested that the transfer amount "had we increased the funding by 5% every year, because that is how much the costs have increased", should now be £9.1 million.[32]

38. We were told that the Welsh Government distributed these transferred funds to the LHBs that had treated those patients from across the border: "people who live in England might receive primary care at Aneurin Bevan, but if they are treated at a hospital in Cardiff, the funding will go to Cardiff. The funding goes where the treatment is given".[33]

39. In the case of secondary and tertiary services commissioned in England for patients resident in Wales with a GP in Wales, Welsh LHBs and WHSSC make payments for activity undertaken by English NHS providers, either under contractual or non-contractual arrangements. This activity is charged by English providers at English tariff (Payment by Results) rates.[34] It is less common for English residents registered with GPs in England to seek treatment in Wales, but where this does occur, Welsh LHBs and NHS Trust providers charge English CCGs for the activity based on their local calculated cost.

40. During our public events, we heard concerns among Welsh patients that they could be refused treatment in English hospitals because of a shortfall of money from Welsh LHBs. Many of these statements were based on high-profile events that largely took place in a particular time frame.[35] Betsi Cadwaladr University Health Board reassured us that financial planning had improved, and that Welsh LHBs were developing three-year plans to allow more integrated planning, which would take into account population demands and known flows.[36] We also heard that some English-based providers had failed to invoice Welsh Local Health Boards within the agreed timeframe.

41. Shropshire Clinical Commissioning Group told us that relationships between LHB and CCGs had improved and there was a "lot more dialogue at all levels: in front-line services, among senior management and at executive—even Chief Executive—level".[37] The Department of Health informed us that greater transparency would be available from 2014-15 onwards, as the Department would hold central information on monies owed by Welsh LHBs.[38]

42. We welcome the good relationship between Local Health Boards in Wales and the Clinical Commissioning Groups in England. The publication of the financial accounts of such bodies will enable the public to see whether value for money is being achieved.


16   Health and Social Care Act 2012, Part 1 and Schedule 2 Back

17   Protocol for Cross-border Healthcare Services, April 2013 Back

18   The protocol has been annually or biannually since 2005. The current protocol runs from April 2013 until 2016. Back

19   The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 Back

20   Action4OurCare is a non-party political, not for profit action group which was set up in March 2013 by a number of Gloucestershire residents. Back

21   Q64 Back

22   Jesse Norman MP (CHB0018) Back

23   There are four practices in contract with the Welsh NHS that have surgeries in England. In the area of Shropshire CCG, the Chirk practice has a surgery in Oswestry. In the area of Gloucestershire CCG (more specifically, in the Forest of Dean) there are 3 practices: the Wye Valley Practice has a surgery at St Briavels; the Vauxhall Practice has a surgery at Tutshill; and the Towngate Practice has a surgery at Sedbury. Back

24   Q48 Back

25   Q125 Back

26   Q127 Back

27   Q293 Back

28   Q377 Back

29   Department of Health (CBH0049) Back

30   Q348 Back

31   Welsh Government (CBH0051) Back

32   Q344 Back

33   Q343 Back

34   The Department of Health publishes national tariffs every year. Back

35   For example: in 2008, the North Bristol NHS Trust refused to admit patients from Wales after the Welsh NHS refused to pay the going rate for treatment; in 2011, the Liverpool Heart and Chest Hospital banned patients from North Wales from having elective surgery after Betsi Cadwaladr University Health Board failed to provide funding for their treatment. Back

36   Q26 Back

37   Q110 Back

38   Qq273-4 Back


 
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Prepared 12 March 2015