Insider tales and must-read analysis on how integration is reshaping health and care systems, NHS providers, primary care, and commissioning. This week by deputy editor Dave West.

Have you got that nagging feeling that something is not quite right? Your fully integrated, post-2022 Act, joined-up existence is not quite what you were promised? Something’s gone wrong in the neatly organised, person-centered integrated care system/Place/neighbourhood hierarchy of the new world?

What is missing? Could it be the forbidden provisions of the 2022 Health and Care Act?

Alright – it almost certainly isn’t that – but let’s discuss them anyway.

1. The provider selection regime

One of the most significant parts of the 2022 Act – symbolically at least – was to recant and repeal the most infamous piece of NHS legislation of the past decade: Section 75 of the 2012 Health and Social Care Act, and the associated “Section 75 regulations”.

Managers and lawyers, rightly or wrongly, felt these competition rules stopped them organising and reorganising services in the way they wanted to, with the providers they wanted to.

Yet – to get rid of the old, you need to bring in the new – and government promised to create “a bespoke regime that will give commissioners more discretion over when to use procurement processes to arrange services”.

The only issue: It never did. The “provider selection regime”, as it was to be known, was consulted on, but has never surfaced.

Its absence is increasingly causing material problems. There are systems and areas which want to put in place a new set of services, which they might encourage and hope will be more joined-up, perhaps bringing together community services into a local “lead provider” trust, focused on the health of a given “place” or to “repatriate” pathways which were previously hived off to independent providers, perhaps.

Other areas have existing contracts (often for community services) coming to an end and don’t know what to do now in absence of the PSR.

Says NHS Confederation ICS network director Sarah Walter: “This is an area where we’re hearing concern from members. We have raised [it] with the Cabinet Office. There are areas which want to use the PSR as a clearer and more straightforward commissioning route…

“They are asking, what do we do when contracts come to an end? If a new regime is coming soon, do we continue to rollover what we currently have? Or do we need to be going through a full contractual process if there’s going to be a more significant delay or change.”

Well-placed sources confirm the main hold up is the Cabinet Office which – seemingly mindful of the furores over dodgy contracts for covid supplies – has stuck a spanner in the works, by raising concerns the PSR might spell poor decisions and bad value for money.

It seems pretty bizarre. While there may be legitimate worries (value for money and otherwise) about the NHS handing large, long-term contracts to incumbent providers, it’s rather different to the covid procurement debacles caused by national politicians.

More positively, HSJ understands there is no real political or philosophical difference over the PSR direction in government. Although the prime minister is now keen to extol “patient choice” as a way of tackling the waiting list, there is no wider shift back towards competition.

So once the cogs of government grind through the Cabinet Office’s concerns, the PSR will eventually be approved, but as to whether that will happen by this summer, don’t hold your breath.

2. Delegation to providers and place

In line with the shift away from the traditional purchaser/provider approach, the 2022 Act also introduced various provisions to enable ICBs to delegate their commissioning responsibilities to providers; to local authorities; or to joint committees with these organisations.

This could make way for a wide range of different approaches – people were promised – but the most common would be delegating real budgets and hard decision-making to a) “Place” partnerships within systems; and b) lead providers, either to take responsibility for “Places” or for particular services/pathways.

The issues slowing things down here are more complicated: There’s a combination of a technical legal blunder and a question of will.

On the technical point, there is NHS England guidance dated March (attached) and seen by HSJ which blocks ICBs from using the new provisions to delegate to trusts or FTs through 2023-24. It cites “two significant areas where if ICBs were to formally delegate core commissioning functions to NHS providers” it would seemingly blow a hole in “the existing legal requirements” – namely, it appears, requirements to meet waiting times, follow the NHS payment system, and offer choice of provider.

Technically NHSE’s “hold” on use of these powers applies only to delegation to trusts – not to councils or joint committees – while NHSE, as well as Confed and NHS Providers (see below), stress other means for achieving similar are available and indeed are already in use.

Yet numerous ICB execs HSJ has spoken to in recent weeks have heard about the guidance and cited it as forbidding delegation much more widely, including restricting moves they had been contemplating to put “Place” partnerships on a formal footing.

Meanwhile, I’m aware of none which profess to have delegated hard powers and budgets to Place, which would create real “subsidiarity”, and have heard from many areas which admit they do not.

This approach suits a lot of people and arguably is the wise approach in the centralised, short-termist and financially risky environment of the next 12-18 months.

Does it matter? There is no doubt it puts real limits on the influence which can be had at “Place” and will frustrate some of those involved, including the councils which normally operate at this level.

However, many involved with this work are comfortable with informal agreements, at least for now. The looser approach, based on “partnership” rather than rules and budgets, is sensible while systems work out what they want to achieve and how, they argue.

NHS Providers head of policy and strategy David Williams told me: “NHSE’s decision to delay formal delegation under the 2022 Act is a pragmatic one in the circumstances, and welcome.

“It’s important to remember that ‘delegation’ in this sense is only one of several options available to trusts and ICBs if they want to give providers more autonomy or ability to shape how services are run locally. This decision doesn’t affect the other options, such as the lead provider arrangements that have been pioneered in mental health and elsewhere. 

ICSs are still new in statutory terms, and in many areas governance arrangements are still being worked out. It’s important that they take the time they need to get this right.”

And Ms Walter, of the ICS Network, says: “Systems do want to delegate but are still working the detail of how it might work in practice. There is a lot they can do which isn’t quite as full as the full delegation of statutory commissioning responsibilities from ICBs to provider trusts…

“We have not heard concern from members saying this is slowing us down, at the pace we’re doing things.”

I’ll explore more about how Place is getting on in another newsletter soon – let me know if you have a view.

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