Whether CCGs will delegate some functions is no longer up for debate, says Jane Williams, who examines the delegation options available and the risks that come with each of them
This article was part of the Commissioning Legal Adviser channel, in association with Mills & Reeve. The channel is no longer being updated.
To delegate, or not to delegate? That is the question. If only it were that simple. The question is not whether clinical commissioning groups 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, but how is best do so.
This briefing seeks to explore the modes of delegation open to CCGs and the level of risk associated with each so an informed decision can be made.
Statutory framework and the model constitution
From 1 April, CCGs will be the statutory bodies responsible for commissioning services for the patients they are responsible for, in accordance with section 3 of the National Health Service Act 2006.
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 group’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Commissioning Board Authority first published a model constitution framework for CCGs in April 2012, though this was superseded by the NHS Commissioning Board’s publication in October 2012 (now known as the model constitution).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:
- any of its members;
- its governing body;
- its employees;
- or 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 it has delegated.
Yet it is natural that the 211 CCGs should be looking to achieve some economies of scale among their number. As the Framework for collaborative commissioning between clinical commissioning groups document says: “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 subsections 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 CCGs to exercise any of the commissioning functions of another on its behalf; or b) all the CCGs to exercise any of their commissioning functions jointly.
- 6) Arrangements made under this section do not affect the liability of a CCGp 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’s assume there are three CCGs in our area: CCG1, CCG2 and CCG3.
Option 1: simple delegation
Under s14Z3(2)(a) CCG1 could ask CCG3 to operate an IFR process on its behalf: hands off, no involvement, full delegation.
As simple as option one sounds, the risk lies in s14Z3(6): while CCG3 does all the work (for which, incidentally, it 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 and tries to defend the decision that CCG3 made on its behalf that it had no involvement in making. Carrying the can for someone else’s decision is seldom an appetising prospect (unless you know their decision making process is as impeccable as − or better than − your own).
Option 2: joint arrangements
Under s14Z3(2)(b) CCG1, CCG2 and CCG3 could exercise their function of running an IFR process “jointly”. Sounds familiar? Primary care trust cluster-wide IFR panels have worked well, you might say. Ah, but that was before April 2013. The reason? The guidance to paragraph 6.5.1 of the model constitution spells it out:
“Towards establishment sets out in the collaborative arrangements section (chapter 7) that CCGs could establish joint committees with other CCGs. Note the statutory position for CCGs is different from that of PCTs. 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 member or employee nominated as the individual delegate.
What if your nominated delegate is the lone dissenter on the IFR panel? In one sense that doesn’t matter. As your representative is the only person in the joint forum authorised to make a decision for your CCG, their opinion is the only one that really counts.
But 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? Being the CCG’s “chosen one” may also be seen as something of a poisoned chalice − will there be a dearth of candidates for the job?
Option 3: going it alone
Each CCG could run its own IFR process, entirely discretely from the others. There is no obligation to collaborate and even less 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 old days”, this option has a nice ring of familiarity about it. But, where once you were 152, now you are 211, and while 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 made through its own committees.
The remaining options involve commissioning support units.
Section 14Z9 of the 2006 act
14Z9 exercise of functions by the NHS Commissioning Board:
- The board may, at the request of a CCG, 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.
- Regulations may provide that the power in subsection 1 does not apply in relation to functions of a prescribed description.
- 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 CCG.
- Arrangements made under this section do not affect the liability of a CCG 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 any arrangement between a CCG and a CSU will, in reality, be an arrangement between the group and the board.
Section 14Z9 empowers the board to exercise commissioning powers on behalf of the CCG if a) the group 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 substantively in force, at the time of writing. Although no regulations have been made precluding the activity proposed above they may still appear, especially if the secretary of state wishes to maintain clean lines of separation between CCGs and the commissioning 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 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. While it seems unlikely that support unit 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 that mean all these fine plans mean nought, in which case it’s 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 unit 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 snag that liability for the decision of the CSU would rest with the CCG responsible for the patient. You can delegate your bureaucracy (and effectively part of your budget) but not your liability.
And this option means you will have to rethink your arrangements again in a couple of years’ time, in readiness for the proposed floating of CSUs into their splendid isolationist independence from the board in 2016.
Option five: contract for support
If the CCG and the CSU wish to collaborate but the board rejects the proposal in option four, or the parties do not wish to wait until the group 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 possibility.
As an alternative to delegating decision making to the commissioning board, the group could consider entering into a contract with the CSU for the provision of clearly defined support services. In this case, the arrangements would need to be clear that the operative word is “support”. The CCG will establish the commissioning framework and sets the IFR policy and it makes the ultimate decision whether or not to approve any requests for funding.
This option would involve the CSU running the administrative side of the process − dealing with the paperwork, recruiting and collating the evidence, conducting the public health statistical analysis, etc − and then making a recommendation 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) 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 recommendation.
Under this option, there would be an inevitable displacement between the critical analysis of the evidence and the final decision making process. The group, having delegated the hard work, would then have to revisit the evidence in order to make a considered and reasonably judicial review-resistant decision. After all, you can contract out a function of your IFR process but you remain liable for the final decision.
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 it would be practicable.
In this briefing we have examined 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, at the very least, we have given you food for thought.
Jane Williams is a senior solicitor for Mills & Reeve, email@example.com