Clinical Commissioning Groups: Basic decision making around delegation

briefing January 2013 Clinical Commissioning Groups: Basic decision making around delegation To delegate, or not to delegate? That is the question. If only it were that simple. The question is not whether CCGs should grant authority to other people or bodies to act on their behalf in making key decisions, notably in the field of Individual Funding Requests (IFRs), but how they should best do so. This briefing seeks to explore the modes of delegation open to CCGs and the level of risk associated with each so that an informed decision can be made. Statutory framework and the model constitution From 1 April 2013 Clinical Commissioning Groups (CCGs), established under the Health and Social Care Act 2012, will be the statutory bodies responsible for commissioning services for the patients for whom they are responsible, in accordance with s3 National Health Service Act 2006 (the 2006 Act) 1. CCGs are clinically-led membership organisations made up of general practices. The members of the CCG are responsible for determining the governing arrangements for their organisation. They must set out the arrangements made to discharge the CCG s functions and its decision-making processes in a constitution. The NHS Commissioning Board Authority first published a model constitution framework for CCGs in April 2012, although this was superseded by the NHS Commissioning Board s publication in October 2012 (the model constitution). Paragraph 3(3) of Schedule 1A to the 2006 Act and paragraph 6.1.1 of the model constitution state that a CCG may grant authority to act on its behalf to: a) any of its members b) its governing body c) its employees d) a committee or sub-committee of the group The extent of that authority to act will be expressed through the group s scheme of reservation and delegation and (where delegation is to a committee) the committee s terms of reference. Paragraph 6.2.2 of the model constitution states clearly that the CCG remains accountable for all of its functions, including those that it has delegated. 1 Once authorised, CCGs have the power to make arrangements from 1 February 2013 for the provision of services from 1 April 2013. 1

Yet it is natural that the 211 CCGs should be looking to achieve some economies of scale amongst their number. As the draft document A framework for collaborative commissioning between clinical commissioning groups stated, it will be important for CCGs to have appropriate robust collaborative arrangements between themselves and with other organisations if they are to commission improvements in healthcare for their local populations and drive the integrations of services around the needs of individuals. CCGs should consider carefully where collaboration will be appropriate and how best to effect it. Section 14Z3 of the 2006 Act This section deals with arrangements by CCGs in respect of the exercise of their functions. The key sub-sections for our present purposes provide that: (1) Any two or more clinical commissioning groups may make arrangements under this section. (2) The arrangements may provide for (a) one of the clinical commissioning groups to exercise any of the commissioning functions of another on its behalf, or (b) all the clinical commissioning groups to exercise any of their commissioning functions jointly. (6) Arrangements made under this section do not affect the liability of a clinical commissioning group for the exercise of any of its functions. (7) In this section, commissioning functions means the functions of clinical commissioning groups in arranging for the provision of services as part of the health service (including the function of making a request to the Board for the purposes of section 14Z9). So, for the purpose of examining our options, let us assume that there are three CCGs within our area: CCG1, CCG2 and CCG3. Option one: simple delegation Under s14z3(2)(a) CCG1 could ask CCG3 to operate an IFR process on its behalf: hands off, no involvement, full delegation. Simple as option one sounds, the risk lies in s14z3(6): whilst CCG3 does all the work (for which, incidentally, CCG3 can levy a charge), liability remains with CCG1 all the way to the Administrative Court. CCG1 is the responsible commissioner for the patient and CCG1 cannot divest itself of liability for an IFR decision in respect of that patient, even if it can divest itself of the bureaucratic burden. CCG1 receives the claim for judicial review; CCG1 tries to defend the decision that CCG3 made on its behalf but in which it had no involvement. Carrying the can for someone else s decision is seldom an appetising prospect (unless you know that their decision making process is as impeccable as - or better than - your own). Option two: joint arrangements Under s14z3(2)(b) CCG1, CCG2 and CCG3 could exercise their function of running an IFR process jointly. Sounds familiar, right? PCT Cluster-wide IFR panels have worked well, you say. Ah, but that was then (pre 1 April 2013)...and this is now (post apocalypse). The reason? The Guidance to paragraph 6.5.1 of the model constitution spells it out: 2

Towards establishment sets out in the collaborative arrangements section (chapter 7) that clinical commissioning groups could establish joint committees with other clinical commissioning groups. Note the statutory position for clinical commissioning groups is different to that of Primary Care Trusts. Clinical commissioning groups cannot establish a joint committee which in itself has delegated decision-making authority. However, each group may, for example, grant in its constitution delegated authority to members or employees participating in those joint arrangements to make decisions on its behalf (the group retaining liability for the decision). It is therefore the individual member / employee who has the delegated authority. So, joint arrangements can be talking shops and forums for discussion but ultimately the authority to make a decision rests with the individual delegate the member or employee so nominated. What if your nominated delegate is the lone dissentient on the IFR panel? In one sense that doesn t matter. As your representative is the only person in that joint forum authorised to make a decision for your CCG, their opinion is the only one that counts. Yet, might not a High Court judge, picking over the evidence before the forum, be inclined to find such a decision irrational, given the preponderance of opposing views? Moreover, being the CCG s Chosen One may be seen as something of a poisoned chalice; will there be a dearth of candidates for the job? Option three: going it alone Each CCG could, of course, run its own IFR process, entirely discretely from the other two CCGs. There is no obligation to collaborate, still less an obligation to leave the decision-making to someone else when your CCG is the potential respondent in any judicial review claim to be made by a disappointed patient. A Mini-Me version of the Good Ol Days, this option has a nice ring of familiarity about it. But, where once you were 152, now you are 211, and whilst some good things undoubtedly come in small packages, the breadth of expertise in the pool from which to appoint IFR panel members is now discernibly smaller. Do you still have the human resources to recruit excellence and experience to your panels? If you do, this may be the preferred option: each CCG only takes responsibility for the decisions it has, through its own committees, made. The remaining options involve Commissioning Support Units (CSUs) Section 14Z9 of the 2006 Act 14Z9 Exercise of functions by the NHS Commissioning Board (the Board) (1) The Board may, at the request of a clinical commissioning group, exercise on behalf of the group (a) any of its functions under section 3 or 3A which are specified in the request, and (b) any other functions of the group which are related to the exercise of those functions. (2) Regulations may provide that the power in subsection (1) does not apply in relation to functions of a prescribed description. (3) Arrangements under this section may be on such terms and conditions (including terms as to payment) as may be agreed between the Board and the clinical commissioning group. 3

(4) Arrangements made under this section do not affect the liability of a clinical commissioning group for the exercise of any of its functions. Option four: delegation to a CSU It is our understanding that all CSUs will be transferring into the Board so that, in future, any arrangement between a CCG and a CSU will, in reality, be an arrangement between the CCG and the Board. Section 14Z9 empowers the Board to exercise commissioning powers on behalf of the CCG if (a) the CCG requests it to do so, (b) the Board agrees to do so and (c) no regulations are made preventing the Board from doing so. Section 14Z9 is not, at the time of writing, substantively in force. Although no regulations have yet been made precluding the activity proposed above, they may well yet appear, especially if the Secretary of State wishes to maintain clean lines of separation between CCGs and the Board. By definition, an arrangement of this type could only be made after the later of the date on which this section is brought into force and the date on which the statutory CCG is established (so that the CCG can ask the Board to accept the delegation and agree terms with it). However, there is no reason why discussions could not take place with the Board now to establish whether it would accept delegation to the CSU and, if so, on what terms. Although it seems unlikely that CSU staff will have authority to decide whether the Board accepts delegation, they may be a useful bridge to the relevant gatekeepers in the Board. Regulations may be made which set all these fine plans at nought, in which case it is back to the drawing board. Even if regulations are not made prohibiting the Board from allowing the CSUs it is hosting to run IFR processes, the Board may simply decline the CCG s request for the CSU to act as its delegate on principle. Commissioning was intended to be driven at the local level and Board involvement could be seen as unwelcome centralisation. Moreover, even if it can be done even if there are no prohibiting regulations and the Board accepts this anomalous devolution back to the centre there is the tiny snag that, once again, liability for the decision of the CSU would rest with the CCG responsible for the patient. You can delegate your bureaucracy (and, effectively, this part of your budget) but not your liability. And, oh yes, this option means you will have to rethink your arrangements all over again in a couple of years time, in readiness for the proposed floating off of CSUs into their splendid isolationist independence from the Board, come 2016. Option five: contract for support If the CCG and the CSU wish to collaborate but the Board rejects the proposal suggested at option four, or the parties do not wish to wait until the CCG is authorised before arrangements can be put in place, or the CCG simply does not fancy the cut of option four s jib, then there is one more dish on the menu. As an alternative to delegating decision-making to the Board, the CCG could consider entering into a contract with the CSU for the provision of clearly defined support services to the CCG. In this case, the arrangements would need to be clear that the operative word is support : The CCG establishes the commissioning framework and sets the IFR policy and the CCG takes the ultimate decision whether or not to approve any request for funding. 4

This option would involve the CSU running the administrative side of the IFR process dealing with the paperwork, recruiting and collating the evidence, conducting the public health statistical analysis etc and then making a recommendation, as to whether or not to fund, to the CCG. The CCG would need to have a mechanism through which it (or one of its lawful delegates ie. the governing body, a committee or sub-committee of that body, or a member or employee of the CCG) took the final decision on funding. That authorised decision-maker would need to have the necessary skills and expertise of IFR to do more than simply rubber-stamp the CSU s recommended course of action. Under this option, there would be an inevitable displacement between the critical analysis of the evidence and the ultimate decision-making process. The CCG, having delegated the hard work, would then (in reality) have to revisit the evidence in order to make a considered and reasonably JR-resistant decision. After all, you can contract out a function of your IFR process but you, the CCG, remain liable for the final decision. And, should you prepare to cross the threshold of the Administrative Court, you may need to consider obtaining witness statements from the individuals at the CSU who initially analysed and dissected the evidence. Whether or not this would be a rewarding or palatable exercise, you need to consider whether, ultimately, it would be practicable. Conclusion In this briefing we have examined, in necessarily short order, five possible ways of running an IFR process, each with its upsides and downsides and its very distinct degree of risk. Which option you choose will depend on your local landscape, your experience, your expertise and your perception of risk. But we hope that, at the very least, we have given you food for thought. Jane Williams Senior Solicitor for Mills & Reeve LLP +44(0)121 456 8421 jane.williams@mills-reeve.com www.mills-reeve.com T +44(0)844 561 0011 Mills & Reeve LLP is a limited liability partnership authorised and regulated by the Solicitors Regulation Authority and registered in England and Wales with registered number OC326165. Its registered office is at Fountain House, 130 Fenchurch Street, London, EC3M 5DJ, which is the London office of Mills & Reeve LLP. A list of members may be inspected at any of the LLP's offices. The term "partner" is used to refer to a member of Mills & Reeve LLP. The contents of this document are copyright Mills & Reeve LLP. All rights reserved. This document contains general advice and comments only and therefore specific legal advice should be taken before reliance is placed upon it in any particular circumstances. Where hyperlinks are provided to third party websites, Mills & Reeve LLP is not responsible for the content of such sites. Mills & Reeve LLP will process your personal data for its business and marketing activities fairly and lawfully in accordance with professional standards and the Data Protection Act 1998. If you do not wish to receive any marketing communications from Mills & Reeve LLP, please contact Suzannah Armstrong on 01603 693459 or email suzannah.armstrong@mills-reeve.com 5