Herts Valleys Clinical Commissioning Group. Review of NHS Herts Valleys CCG Constitution

Transcription

1 Herts Valleys Clinical Commissioning Group Review of NHS Herts Valleys CCG s constitution Agenda Item: 14 REPORT TO: HVCCG Board DATE of MEETING: 30 January 2014 SUBJECT: Review of NHS Herts Valleys CCG Constitution PRESENTED BY: Alasdair Bovaird, Corporate Projects Manager AUTHOR: Alasdair Bovaird STATUS of REPORT: To approve To discuss To ratify To note To consider For information PURPOSE of the REPORT: The CCG Board has agreed a series of earlier recommendations for the conduct of a review of the CCG s constitution. This report now recommends that the CCG Board endorse the draft constitution and associated documents as a basis for engagement and consultation with the members of the CCG and others. The results of those engagement processes will be brought to the GP Forum on March 20 for their consideration and, if agreed, adoption of the revised constitution. RECOMMENDATIONS: That the CCG Board: 1. endorse the draft constitution and associated documents included as Appendix 1 to this report as a basis for further engagement and consultation. 2. agree the proposed process for engagement set out in the report; 3. note that legal advice on the draft will be sought once approved and prior to seeking endorsement at the GP Forum on March note that the products of that engagement process will be submitted for the formal endorsement of CCG Members at the GP Forum on March ; 1

2 5. that the CCG Board meeting in March will have the opportunity to review the final document before it is submitted to NHS England for approval; and 6. note that any revised constitution will not come into effect unless and until NHS England approval is received. Is this report exempt from public disclosure? If yes, grounds for exemption (FOIA or DPA section reference) No Yes Which ASSURANCE FRAMEWORK objectives are supported by this paper? AND Please state how it relates to the framework Does this paper support the CCG CLINICAL STRATEGY? Objective 4 is about being an organisation that is effective and lives within our means. The effectiveness of the organisation is dependant on their being a clearly understood framework of governance that commands legitimacy among the members. Establishing a soundly based constitution is central to that task. No Yes ENGAGEMENT: Has appropriate engagement and consultation taken place? LEGAL ISSUES: Has legal advice been sought? No Yes N/A Preliminary discussions have been held with numerous stakeholders including CCG Board members, CCG staff and some member practices. The report contains proposals for further engagement and consultation. No Yes N/A The CCG Board decided to draft the revised constitution in-house on the basis of published templates and guidance. Legal advice will be sought on the proposed draft once approved by the CCG Board. THE NHS CONSTITUTION: Does this paper support the NHS Constitution Principles and Values? No Yes 2

3 Definitions To approve To ratify To discuss To consider To note An item of business that requires the Board to take a formal decision An item of business where the Board is required to ratify the action(s) taken on behalf of The Board, for example, by a formal committee established by the Board An item of business that requires discussion by the Board prior to agreement of a formal resolution or a general policy steer to the executive officers. A report containing a positional statement relating to the delivery of the CCG s functions for which the Board has a corporate responsibility but is not explicitly required to make a decision. An item of business for which the Board is required to give due regard to but for which there is not expected to be discussion. For information An item of information that is of general interest but is not of significance to the Board s corporate or operational activities. 3

4 Review of NHS Herts Valleys CCG s constitution 1. Executive Summary and Purpose of the Report In order to achieve authorisation in April 2013 and to be able to assume its statutory duties, NHS Herts Valley CCG prepared and adopted a constitution as required by law. This constitution was approved by NHS England as setting out appropriate arrangements for the governance of the CCG and for ensuring that its decision, discussions and actions would be soundly based. However, the operation of the constitution in practice has proved to be more difficult than it ought to be and during the course of the year some inconsistencies have come to light within the constitution and between the terms of the constitution and the external guidance with which the CCG must comply. Accordingly the Board has agreed to review the CCG constitution with a view to making it easier to use in practice, to eliminate some of the inconsistencies and to provide greater flexibility in some aspects of the constitutional arrangements. Once approved by the members of the CCG, the revised constitution will need to be submitted for approval to NHS England. Any new arrangements cannot take effect until such time as approval is received. Within the CCG s own structures, the membership of the CCG will need to approve the revised constitution and the intention is to submit a revised draft for approval to the members of the CCG at the GP Forum scheduled for March 20. This report contains a draft of the new constitution and the Board are asked to consider that draft and to agree that it can form the basis of wider consultation and engagement with members and others in the period between this meeting of the Board and the GP Forum (which in the terms of the revised constitution will be regarded as a general meeting of the CCG). 2. Outline of revised constitution The draft revised constitution and associated documents is appended to this report. The intentions behind the redraft were: To remove the inconsistencies and ambiguities that had existed in the previous document; To provide greater flexibility to the CCG to adjust policies and structures to meet current needs; To ensure that the provisions of the constitution were compliant with the legal framework in which the CCG operates, and that mechanisms were in place to enable any changes in that framework to be put into effect; 4

5 To give clearer expression to the membership basis of the CCG s organisation and make clear the respective roles of the CCG, its members, its governing body and its staff. Taken altogether these objectives have given rise to a significant redrafting of the document compared to its predecessor. However, the key differences include: Key Changes Structured to provide appropriate flexibility The structure of the document makes a clear distinction between the Articles of the Constitution on the one hand and the various appendices to the constitution on the other. The core rules and governance requirements of the CCG are set out in the articles of the constitution. Those articles can only be amended by a vote of CCG members and with the approval of NHS England. Appendices to the constitution can be changed within the CCG s own structures: in some cases by the members, in others by the CCG Board, and in the case of simple factual changes on the authority of the Accountable Officer. Changes to the appendices will not require the approval of NHS England and will allow, for example, committee structures or terms of reference to be changed to meet the needs of the CCG without having to await the permission of an external body on matters of detail. Membership Structures The revised constitution sets out clearly the role of members (i.e. member practices), puts in place provision for general meetings of members and for them to be able to hold the CCG Board accountable. Governing Structure The draft proposes a clarification of the status and terms of office of various members of the board (without affecting the term of office of the current board membership). It also abolishes the notion of non-voting members of the board, replacing them with either delegates or advisors to the board. It is envisaged that the current representation from Healthwatch and from patients will be regarded as delegates to the board since they are present representing other organisations, while those who are present for their expertise, such as public health, will be advisors to the board. This revision makes clear who among those attending the board shares responsibility for the board s decisions and who does not. The new draft includes a definition of the four localities into the articles of the constitution, and reflects the statutory requirement to have Audit and Remuneration committees, but 5

6 other committee structures are left for the board to agree what is required, and to review those structures and terms of reference no less than annually. Role of localities The revised constitution will make clear the essential role that localities play in the work of the CCG. An associated piece of work has been underway over the last few months to establish terms of reference for the CCG s four localities. This work will be incorporated into the revised constitution and will form part of the engagement process but it has not yet been completed. The relevant appendix to the revised constitution has therefore been left blank. It will be completed and submitted for member endorsement by 20 March along with the rest of the revised proposals. Conflicts of interest The draft provides a mechanism for the CCG to agree a decision making process in those circumstances where more than half the CCG board have a conflict of interest and therefore are unable to provide a quorum for a decision to be made. This is not clearly set out in the current constitution. Avoids repetition Process A feature of the current draft is that it repeats information in several places for example the CCG s website address appears in nine places in the current constitution. This kind of repetition gives rise to two main problems: if there is a need to change it, you need to be sure to change it everywhere it occurs (and other examples of this may be less easy to spot); and secondly, it creates an unnecessary inflexibility to include this sort of detail in the articles of the constitution. In this instance a change in the CCG s website address would require an amendment to the constitution to be approved by NHS England. In the revised draft such information is specified in the appendices (for example, in the Scheme of publication and transparency ) which can be readily amended as necessary. There are many other changes proposed in the redraft and the CCG board is encouraged to familiarise themselves with the detailed provisions to the greatest extent possible. However, at this stage, it is emphasised that the Board is only asked to endorse the draft as the basis for consultation and engagement and there is ample scope for further adjustments over the next stages of the process. The proposed process from this point is set out in the table below: 6

7 Date Action 30 January 2014 HVCCG Board approves revised draft as a basis for consultation Board also approves engagement/consultation process 31 January to mid-march 2014 Engagement and consultation process undertaken 20 March 2014 GP Forum (General Meeting) to consider/debate final proposals and adopt the revised constitution 27 March 2014 HVCCG Board agree the submission of proposals to NHS England Thereafter New constitution will not be in effect until NHS England s approval is given. Engagement The key audience for which engagement is necessary is the membership of the CCG that is to say, the practices. However, there are others who have a stake in the proposals and who must also be consulted. A programme of written and face to face engagement will take place with all those who have an interest in the operation of the CCG, largely during February Members Patients and public LMC All practices will be written to, and meetings will be arranged with localities to explain the proposals, to identify improvements in those proposals and address any concerns that might arise. The views expressed will be captured and any necessary adjustments to the proposed draft documents will be made prior to the GP Forum. The Patient and Public Involvement networks will act as the primary mechanism for seeking public views on the proposed changes and meetings will be attended to enable a full discussion to take place. As well as this, the consultation on the new constitution will be advertised through the CCG s website, social media and by writing to the list of public members of the CCG. As the board will be aware, a number of campaigning groups specific to the local NHS and nationally may wish to take a view on these proposals. In particular, the CCG Board received a petition from 38 Degrees about the previous constitution: that petition has been taken into account in preparing the current proposals. Specific consultation with the LMC will be undertaken as a priority they have already had sight of early drafts of the proposed changes. This will enable any major issues to be identified, and for the LMC to be in a position to give clear advice to their membership. 7

8 NHS England Partner organisations NHS England (through the Area Team) have been kept informed of progress and a meeting has been sought to discuss the detailed proposals. Since the approval of NHS England is essential for the adoption of the new constitution, any concerns they have will need to be taken fully into account. None have been raised so far in the process. Local authorities and other organisations operating in the Herts Valleys area may wish to give their views on the proposals and we will write to them giving them the opportunity to do so. Legal advice The current draft has been prepared without the assistance of legal advisors in accordance with the earlier decisions of the Board. However, it would not be prudent to proceed to seek the endorsement of members or of NHS England without seeking such advice. Arrangements for doing so are in place and will be enacted once the board has agreed the terms of this report. 3. Risks and Mitigating Actions The CCG s constitution forms the basis for the CCG s decision making process. If decisions are not made in accordance with the constitution or if the constitution itself is not soundly drafted, the risk exists that the decisions of the CCG will not be found lawful in the face of a challenge. The purpose of this exercise is to minimise that risk by ensuring that the constitution is a) clear and b) compliant with all the obligations of the CCG. In pursuing the need to revise the existing constitution, three main risks to the successful conclusion of the exercise arise and are set out in the table below together with the actions that will or have been taken to mitigate those risks. That the revised constitution itself is not lawful or compliant with guidance That the members of the CCG do not support the revised constitution That NHS England do not approve the proposed revisions when they are submitted The CCG will seek the necessary legal advice to assure itself that the revised provisions are compliant with both law and guidance. The need for NHS England to approve the proposed changes gives further assurance in terms of compliance with our obligations The process of engagement that we are about to undertake should minimise this risk, as will the need for the propsoals to be endorsed at the GP Forum before they proceed NHS England have been kept informed of developments, and this process will continue through the next phase of the project. 8

9 4. Recommendations That the CCG Board: 1. endorse the draft constitution and associated documents included as Appendix 1 to this report as a basis for further engagement and consultation. 2. agree the proposed process for engagement set out in the report; 3. note that legal advice on the draft will be sought once approved and prior to seeking endorsement at the GP Forum on March note that the products of that engagement process will be submitted for the formal endorsement of CCG Members at the GP Forum on March ; 5. that the CCG Board meeting in March will have the opportunity to review the final document before it is submitted to NHS England for approval; and 6. note that any revised constitution will not come into effect unless and until NHS England approval is received. 5. Conclusion and Next Steps Once the recommendations above have been agreed, the engagement processes set out will need to start immediately. Arrangements are being made to ensure this will happen. 6. Appendices Appendix 1: Draft Revised Constitution and Governing Documents 9