NHS Long-term Plan: legislative proposals Contents

5Integrated care systems

93.Sustainability and transformation partnerships (STPs) are partnerships between different organisations within a local health and care system: clinical commissioning groups, NHS trusts and foundation trusts, local authorities, GPs, the voluntary and community services and other partners. The partnerships were originally established to develop plans for the future of health and social care at a local level, but have evolved to become ‘core units of NHS planning’ and performance management.115 Integrated care systems are advanced forms of STPs which have been granted more autonomy from the NHS at national level over how they manage their collective resources.

94.STPs and ICSs vary in the size of the populations they serve and the number of bodies involved. The geography of some STPs and ICSs is logical, reflecting one natural community, with coterminous boundaries between the individual organisations involved. This is not true everywhere. As the Nuffield Trust point out:

Some [STP and ICS boundaries] make obvious sense and reflect transport and patient flows. Others are not so logical and seem to have been determined by the need to address issues of acute trust configuration. STPs such as Cheshire and Merseyside; Hertfordshire and West Essex; and Bath, North East Somerset, Swindon and Wiltshire do not map to one natural community but rather combine bits of several, with patients being referred out to different specialist hospitals. They cut across systems, rather than uniting them.116

Governance and accountability

95.Neither STPs nor ICS are statutory bodies. Their authority is derived from the decision-making powers of the individual organisations that comprise them. STPs and ICSs have used memorandums of understanding, committees in common and joint committees [ between CCGs and local authorities] as ways for individual organisations to work together and take decisions jointly.117 In our previous report on integrated care we concluded that these workarounds, while pragmatic, are cumbersome and risky. They distance decision-makers from the decisions they are making and complicate lines of accountability.118 These arrangements often lead to duplication and slow decision-making.119 Perhaps most importantly, these arrangements are voluntary; partners can ultimately walk away if they choose to.120

96.NHS England and NHS Improvement’s proposals extend the ways local systems (STPs and ICSs) can take decisions together, but the governance and accountability of STPs and ICSs is likely to remain complex, slow, risky and weak even with these new arrangements.121 Rather than establish ICSs as statutory bodies, NHS England and NHS Improvement are proposing to extend the ways in which individual organisations within an ICS can take decisions jointly. These proposals reflect flexibilities local systems have asked for, but they are voluntary.122 How an ICS decides to make decisions will be left to its own discretion: they will not be compelled to adopt any of the arrangements NHS England and NHS Improvement propose.123 Partners will still be able to walk away.

97.These arrangements may result in new conflicts of interest to manage. For example, the Nuffield Trust points out, when viewed alongside changes to integrated care provision, “we could see the same people operating as providers within the ICP, accountable to the ICS on which they also sit and also potentially accountable to the local CCG of which they may be a member if they are a GP.”124

98.It is not clear how ICSs will be held to account for poor performance and how they will involve and engage the public. There are strong mechanisms for public and patient involvement at a local level, in the shape of local Healthwatch and Health and Wellbeing Boards, but this is not mirrored with ICSs at a regional level.125 We heard from witnesses that the role Health and Wellbeing Boards play in some systems has helped to build in a form of local democratic accountability.126

99.An important question is whether the governance and accountability of STPs and ICSs is robust enough for the big, and potentially difficult and divisive, decisions local areas may face in the not too distant future.

100.There is a broad consensus that governance and accountability of STPs and ICSs is far from ideal and that the law will need to change eventually to establish ICSs as separate legal entities. However, the key question for now is whether the potential upheaval such legislation may cause outweighs the problems posed by the complexities and ambiguities surrounding the governance and accountability of integrated care systems.127 NHS England and NHS Improvement, and others, argue that the risks of legislating too soon outweigh the problems posed by the complexity and ambiguity surrounding the governance and accountability of ICSs, for two reasons.128

101.Firstly, creating ICSs as a separate legal entity, we heard, would constitute a major restructuring of the NHS, as it would require other fundamental changes to the role and accountabilities of clinical commissioning groups and foundation trusts, for example.129 There remains very little appetite for a major top-down restructuring of this kind. As Professor Chris Ham argued:

the difficulty in creating ICSs now as statutory bodies is that you would have to rip up not just the 2012 Act but all the prior legislation, and start again. That would amount effectively to another major top-town reorganisation of structures, which I do not think anybody wants. It is perhaps better to live with some of the complexities and ambiguities we have, with the transparency you are talking about.130

102.Secondly, STPs and ICSs are still developing, and it would be difficult, and potentially detrimental, to define now the legal form ICSs should take. Getting the relationships right at a local level is fundamental to the success of ICSs. The absence of a national blueprint for STPs and ICSs has, we heard, helped, rather than hindered, progress,131 as local leaders have had space to build and define relationships themselves without being directed from above.132 Legislating too soon risks undermining the relationships local leaders are forging together. Legislation could be used, as Patricia Hewitt suggested, to establish an optional legal form that ICSs could adopt in a couple of years.133 However, local system leaders warned us of the danger of over-specifying, at this point in time, forms of governance and accountability, which are then imposed on local systems across the country.134 Richard Murray, Chief Executive of The King’s Fund told us that:

These [ICSs] are emerging around England; they look different and behave in a different way, and they are trying to establish their own internal governance. Yes, I think we will, ultimately, end up in a place where they need to be statutory, but beware of the risks of plumping for one model now. The problem with a lot of health legislation in the past is that it was invented in Whitehall and then cookie-cuttered all over the country in a model that has not worked. There is a tension.135

103.In the absence of establishing more formal accountabilities for ICSs, the next best thing, we heard, may be to ensure ICSs are open and transparent in their conduct. Jon Rouse invited us to Manchester to see how a similar model is applied there. He stated that:

If it would be helpful for any members of the Committee, or indeed your support team, to come to one of our health and care board meetings, which are in public, are webcast and all the papers are published, you would be very welcome to see that in action. It is politically chaired, and the Mayor of Greater Manchester always comes. We get quite a few leaders of councils as well as NHS organisations at those meetings.136

104.The issue of the accountability of integrated care systems (ICSs) and sustainability and transformation partnerships is very important, and not easily solved in the absence of their establishment as statutory bodies. While we agree that it is not advisable at this time to establish all integrated care systems as separate legal entities, in the absence of formal accountability for their collective decision-making, we expect ICSs to meet the highest standards of openness and transparency in the conduct of their affairs by holding meetings in public and publishing board papers and minutes. Transparency, however, is not an adequate substitute for accountability if it is not clear who should be held to account. It is vital to avoid creating a situation where everyone in the system is accountable, but no-one can be held responsible for important decisions. We recommend that the National Implementation Plan due this autumn should set further directions for the standards of governance and transparency local systems should demonstrate.

Joint committees

105.Rather than establishing ICSs as separate legal entities, the consultation document puts forward proposals to extend the ways in which individual organisations within an ICS can take decisions jointly. NHS England and NHS Improvement propose that CCGs and NHS trusts and foundation trusts should be able to create joint committees to exercise collective decision-making.137 This proposal mirrors existing flexibilities that enable CCGs and local authorities to form joint committees and pool budgets. With this in mind, NHS England and NHS Improvement are exploring the prospect of local authorities participating in joint committees with CCGs and NHS providers, where this is agreed by all parties at a local level.138NHS England and NHS Improvement also suggest that it would be sensible to allow NHS providers to form their own joint committees, which may include representation from non-statutory providers, including primary care networks, GP practices or the voluntary sector.139

106.While welcome as a useful extension to the ways ICSs can currently take decisions together, we heard that this proposal is very NHS-focused. Organisations from across the health and care community, including local authorities, the voluntary and community sector, social enterprises and private providers, require more clarity about how ICS decision-making can involve a broad range of local stakeholders. Witnesses warned that one notable risk is that joint committees between CCGs and NHS providers could result in ICSs becoming unresponsive monopolies, in which the NHS operates in its own interest rather than that of patients. As Niall Dickson from the NHS Confederation argued, it is important to:

[ … .] make sure that [these legislative proposals] achieve what we all want to achieve, which is greater local autonomy, not less local autonomy, and a system that fosters integration and, from our perspective, does not lead to monopolies at local level that then become self-satisfied or mediocre.140

107.There was broad consensus that the arrangements for joint committees should build in “appropriate scrutiny and challenge–for example, through lay and non-executive involvement and local democratic oversight”141 and duties to involve patients and the public, including their representatives.142 More clarity is needed about the role of Health and Wellbeing Boards (HWBs) in ICSs. The Local Government Association argued that HWBs could be used in place of joint committees, rather than as separate entities alongside them.143

108.We heard that it is important that local authorities should be able to participate as equal partners in ICSs.144 Having local authorities around the table is important to enable integrated care systems to focus on population health and to be genuinely place-based.145 As local democratic institutions, local authorities can play an important role in providing political input into, and support for, difficult decisions that ICSs need to take.146

109.We agree that the law should change to enable clinical commissioning groups and NHS providers (NHS trusts and foundation trusts) to establish joint committees.

110.We are concerned that the proposals are currently too NHS-centric. Integrated care systems must not repeat mistakes of the past and become unresponsive monopolies or “airless rooms” where non-statutory alternatives are shut out.

111.Local authorities must be part of the decision-making process in order for integrated care systems to be truly place-based and focused on population health. We recommend that additional proposals should be developed that enable local authorities to participate as equal partners in joint committees with clinical commissioning groups and NHS providers.

Triple aim

112.NHS England and NHS Improvement propose that a new shared duty should be introduced that requires those organisations that plan services in a local area (CCGs) and NHS providers of care to promote the triple aim of better health for everyone, better care for all patients and efficient use of NHS resources, both for their local system and the wider NHS. The consultation also states that “the legal duties that currently apply to various bodies might need to be amended or extended to ensure they are consistent across all organisations and support this triple aim.”147

113.The introduction of a new shared duty is widely supported, although some witnesses thought it to be too narrow and NHS-centric. For example, the duty appears to be specifically targeted to CCGs and NHS providers rather than local authorities and other local partners. We heard that the reference to health, rather than wellbeing, or both health and wellbeing, reflected a focus on the NHS rather than the wider health and social care sector. Expanding the duty to include wellbeing may be a useful amendment. Health, as we were told by Dr Charlotte Augst, CEO of National Voices, is only one part of the wellbeing agenda.148 Expanding the duty to include wellbeing may help to bring in other system partners, as Dr Augst described:

We want to make a partnership and shared responsibility approach in places happen. Local governments do not subscribe to the triple aim; they are held accountable for the wellbeing of their communities through the Care Act. Many VCS organisations would not work towards the triple aim. They do not provide health services in that way; they are engaged in improving people’s wellbeing. We think it would be useful to start a conversation about whether wellbeing would not be a more useful outcome, if we want to lock an outcome into legislation.149

114.Despite broad support amongst other witnesses, representatives of NHS providers are sceptical about the value this new duty will add and how it will work in practice. More information is needed on whether, and if so how, compliance with the duty would be monitored, incentivised and enforced. According to the NHS Confederation “it is difficult to see what adding an additional duty to promote the triple aim would mean in practice for trust boards.”150 It seems likely that existing duties on different bodies will need to be revised to avoid any contradiction or duplication. More information is required on how these existing duties would be amended.

115.We welcome the proposal to introduce a shared duty that requires organisations that plan services in a local area (CCGs) and NHS providers to “promote the triple aim of better health for everyone, better care for all patients and the efficient use of NHS resources, both for their local system and for the wider NHS.” Nevertheless, the proposal as currently framed is too NHS-centric. The term ‘better health’ was viewed by witnesses, particularly representatives of the voluntary and community sector, as focused on the NHS. Wellbeing, in contrast, was seen as a more inclusive term which reflects the contribution local government and the voluntary and community sector make to people’s lives. Wellbeing is also an intrinsic part of the World Health Organisation’s definition of health. We recommend that the “triple aim” should be rephrased to include a specific reference to wellbeing.

Barriers to system working

116.NHS England and NHS Improvement have proposed that:

117.These proposals expand the ability of NHS Improvement to intervene where an NHS foundation trust is using its freedoms to the detriment of the system. According to NHS Providers, the NHS Confederation and the Shelford Group, both changes undermine the foundation trust model by reducing the freedoms foundation trusts have and cutting across the duties and accountabilities the boards of NHS foundation trusts have towards their local populations.151

118.It is widely accepted that the NHS, at a national level, may need to intervene in circumstances where one local partner is acting against the interests of the local system and that NHS England and/or NHS Improvement, or a merger of these two bodies, will need to have powers reserved should such circumstances arise. However, the powers proposed are widely regarded as blunt, inappropriate and another attempt from centre to assert greater control over local decision-making.152 Instead, we heard that the objective should be to encourage and empower local systems to resolve problems themselves.

Mergers and acquisitions

119.NHS England and NHS Improvement propose to give NHS Improvement targeted powers to direct mergers or acquisitions involving NHS foundation trusts. Under this change, NHS Improvement would be able to direct NHS foundation trusts to consider or prepare for a merger or acquisition as well as to merge (with another NHS trust or foundation trust) or be acquired (by another foundation trust).

120.NHS Improvement, exercising the powers of the Secretary of State, can currently direct mergers or acquisitions involving NHS trusts. However, NHS Improvement can only take similar action in respect of NHS foundation trusts when they are subject to trust special administration. That is in exceptional circumstances where there is a serious risk of failure. In proposing to extend NHS Improvement’s powers to cover foundation trusts, the document acknowledges that this power should only be exercised in specific circumstances, where there are clear patient benefits, and that appropriate safeguards would be required. During our inquiry we heard from witnesses that a lot more detail is required on several points, including:

121.These proposals are seen by some stakeholders, especially those representing foundation trusts, as undermining the freedoms foundation trusts have and the accountability of their boards. As NHS Providers notes in its written evidence:

It is fundamental to trust autonomy and accountability that the trust board should determine its trust’s configuration–for example, through a merger or acquisition–is fundamental to its autonomy and, therefore, its accountability. It is inappropriate for such changes to be directed from above. It is mistaken and against all governance good practice to require a unitary board to undertake any activity with which it disagrees. It is impossible to hold a board to account if it has been forced to undertake a merger or acquisition that it believes is inappropriate and is not in the best interest of the trust or the community it serves.160

122.While recognising that national bodies may need to intervene, many stakeholders across the health and care community are therefore sceptical about whether this is the most appropriate mechanism. The evidence on the success of mergers, according to The King’s Fund, is mixed at best and mostly disappointing.161 The NHS Confederation that argue that mergers are more successful where they are “locally led in the interest of local patients” and where there are strong relationships between the organisations involved.162 Imposing a merger could undermine integration, rather than support it. Therefore, many stakeholders are against a scenario where the default position is to direct a merger.163

123.NHS Providers argue that the power to direct mergers is a blunt instrument, as it forces a board to do something against their will.164 Instead, NHS Improvement could seek to use some of the regulatory powers it already has, including, in extreme cases, the ability to remove board directors.165 NHS Providers argues that the use of these existing regulatory powers would be preferable as they set a higher bar for action by NHS Improvement.166 In the most extreme example, NHSI would need to find alternative board directors willing to undertake a merger.167

124.Perhaps the strongest reservation about this proposal is that it reflects concerns about an unhelpful shift of power towards NHS England and NHS Improvement, in that it takes responsibility and autonomy away from local systems.168 There is widespread view that local leaders are better placed to make decisions of this nature than their counterparts nationally.169 As Professor Chris Ham, STP Chair and former CEO of The King’s Fund, argued:

It feels to me that surely this is what we should be looking to the systems to take responsibility for, not forcing mergers, but to say that in our system there is an issue about the sustainability of local specialised services and we, as a system, because we are being given more responsibility for money, performance and planning, see it as part of our role to grasp these difficult nettles and come forward with proposals on how the sustainability of specialist services can best be addressed. The knowledge will rest, I think, in most places, within those systems, more so than at a national body or indeed in the regional office.170

Capital spending

125.The consultation proposes that NHS Improvement should be given powers to set annual capital spending limits for NHS foundation trusts. This change would effectively mirror the powers NHS Improvement have over NHS trusts.171 The rationale for NHS England and NHS Improvement’s proposals is that, with freedom over how and when to spend capital funding, it is possible that foundation trusts may use their freedoms in manner which results in a detriment to other partners within an STP or ICS, and therefore to the system as a whole.172

126.We heard from witnesses, particularly NHS Providers, the NHS Confederation and the Shelford Group, that limiting capital spending undermines the accountability of trust boards.173 NHS Providers argue that “the anomaly in the current system is, in fact, the power over NHS trust capital investment, not the absence of that power over NHS foundation trusts. To discharge their accountability effectively, provider boards must have the appropriate powers.”174 The proposal for NHS Improvement to set capital spending limits for NHS foundation trusts is, in its view, another example of a potentially unhelpful shift in power towards the centre. In its written evidence, NHS Providers argue that:

Capital maintenance and investment is a key part of service delivery, and we question the circumstances under which NHS Improvement would be better placed to make a decision here than the trust board, especially given that the consequences for under-investment will sit with the trust and its board. It does not appear that the national bodies would be taking on additional accountability to balance this power to intervene and direct.175

127.Providers argue that risks posed by exceeding capital limits stem more from systemic problems at a national level about the process for determining the amount of capital requirement and for prioritising and allocating capital resources than from local decision-making.176 According to the Shelford Group, a coalition of leading NHS foundation trusts, far greater concerns over capital spending exist, namely:

the approach to defining the total quantum of capital required across the NHS, the balance across the different types of capital investment required (eg. estate, equipment & IT), the propensity for capital to revenue adjustments at a national level to remain within the RDEL and the mechanism for prioritising investment across regions and organisations. It is in relation to these factors that the capital model is fundamentally flawed and failing patients.177

Mergers and acquisitions and capital spending: conclusions

128.Local systems should be empowered to decide the most appropriate way to manage NHS resources. This includes being encouraged to resolve disputes between local partners about the best way to manage resources, including capital resources, within the system. There may be circumstances in which national intervention is necessary to ensure one local partner is not, unreasonably, frustrating system-wide efforts. NHS England and NHS Improvement should have powers in reserve for such circumstances, but such powers should be used only as a last resort.

129.We do not, therefore, support these proposals in their current form. If similar proposals are brought before us for pre-legislative scrutiny in the form of the expected draft bill, we will expect to see the proposed legislation specify the limited circumstances in which these powers can be exercised. The design of these powers should focus on a) removing barriers to integrated care and b) empowering and encouraging local systems to resolve disputes over the configuration of services and the management of resources, including capital resources, themselves.

115 Health Foundation (NLN0039)

116 Nuffield Trust (NLN0009)

117 King’s Fund (NLN0052)

118 Health and Social Care Committee, Integrated care: organisations, partnerships and systems, Seventh report of Session 2017–19, HC 650

119 King’s Fund (NLN0052)

120 King’s Fund (NLN0052)

121 King’s Fund (NLN0052) Q19 Nigel Edwards

122 Qq74–78, Q25 Richard Murray

123 King’s Fund (NLN0052), Q25 Richard Murray

124 Nuffield Trust (NLN0009)

125 Q304 Sir Robert Francis

126 Qq144–146 and Q20 Nigel Edwards

127 King’s Fund (NLN0052), Q22 Richard Murray

128 Qq74–78, King’s Fund (NLN0052), Q22 Richard Murray

129 Qq74–78, Q22 Richard Murray, Q135 Professor Ham

130 Q135 Professor Ham

131 Q141 Professor Ham

132 Health and Social Care Committee, Integrated care: organisations, partnerships and systems, Seventh report of Session 2017–19, HC 650

133 Q106 Rt Hon. Patricia Hewitt

134 King’s Fund (NLN0052), Q22 Richard Murray

135 Q22 Richard Murray

136 Q138 Jon Rouse

140 Q150 Niall Dickson

141 King’s Fund (NLN0052)

142 Q304 Sir Robert Francis, Q304 Beth Capper

143 Local Government Association (NLN0051)

144 Local Government Association (NLN0051), Q152 Sarah Pickup Q158 Sarah Pickup

145 Local Government Association (NLN0051), Q145 Professor Ham,Q178 Sarah Pickup

146 Local Government Association (NLN0051)

148 Q297 Dr Augst

149 Q297 Dr Augst

150 NHS Confederation (NLN0047)

151 NHS Providers (NLN0011), NHS Confederation (NLN0047), Shelford Group (NLN0024)

152 NHS Providers (NLN0011), NHS Confederation (NLN0047), King’s Fund (NLN0052)

153 Academy of Medical Royal Colleges (NLN0022) NHS Providers (NLN0011), NHS Confederation (NLN0047), King’s Fund (NLN0052)

154 King’s Fund (NLN0052)

155 British Medical Association (NLN0037), NHS Confederation (NLN0047), Shelford Group (NLN0024)

156 NHS Confederation (NLN0047)

157 NHS Providers (NLN0011), NHS Confederation (NLN0047)

158 British Medical Association (NLN0037), Royal College of Nursing (NLN0014), NHS Confederation (NLN0047)

159 British Medical Association (NLN0037), Royal College of Nursing (NLN0014)

160 NHS Providers (NLN0011)

161 King’s Fund (NLN0052)

162 NHS Confederation (NLN0047)

163 King’s Fund (NLN0052), NHS Confederation (NLN0047), Health Foundation (NLN0039)

164 NHS Providers (NLN0011)

165 NHS Providers (NLN0011)

166 NHS Providers (NLN0011), Q167 Chris Hopson

167 NHS Providers (NLN0011), Q167 Chris Hopson

168 Q124 Professor Ham, Q108 Jon Rouse, Qq168–169 Niall Dickson, Q165 Chris Hopson

169 Q124 Professor Ham, Qq168–169 Niall Dickson, Q165 Chris Hopson

170 Q124 Professor Ham

173 NHS Providers (NLN0011), NHS Confederation (NLN0047), Shelford Group (NLN0024)

174 NHS Providers (NLN0011)

175 NHS Providers (NLN0011)

176 NHS Providers (NLN0011), Shelford Group (NLN0024)

177 Shelford Group (NLN0024)

Published: 24 June 2019