The new NHS Commissioning Board is likely to have “surprising” and “draconian” powers over commissioning consortia under Health Bill proposals, analysis suggests.
The board will decide whether a consortium should be authorised, whether it should be taken over, and will have the power to abolish it altogether. It will be able to direct consortia actions, and hire and fire their accountable officers.
The board will also be able to wrest funds from allocations to commissioners for the purpose of creating risk sharing arrangements and to bail overspending consortia out, implying that surplus generating consortia might not have their full underspends returned to them each year.
Meanwhile, in relation to the makeup of consortia themselves, the bill appears to continue the government’s light touch approach by setting out few governance requirements.
Consortia will be public bodies and will not have specifically defined independence like foundation trusts, but there is no requirement for consortia to have a board or patient representatives, for example.
The bill suggests GP consortia will be made up of practices that are close to each other by referring to consortia’s “area”, although there is nothing specifically preventing consortia from developing that are made up of geographically disparate practices – creating organisations that some say would start to bear resemblance to US style health maintenance organisations.
The bill also leaves open the major question of whether consortia will have responsibility for anyone living or working in their area but not registered with a GP practice.
Wide areas of commissioning policy are left to further regulations, which means that while health secretary Andrew Lansley has given extensive powers to the NHS board, he will also shape how that power can be used.
Emma Teale, solicitor at law firm Beachcroft, which teamed up with HSJ to provide rapid analysis of the bill on hsj.co.uk last week, said: “The bill leaves the detail to the health secretary to set out in secondary legislation as opposed to explicitly carving out the regime in primary legislation.”
That includes details on the authorisation regime for consortia, which Ms Teale said would therefore “not be expressly stipulated or as tightly controlled” as they would have been if set out in primary legislation.
The bill also adds detail to consortia relationships with council-led local health and wellbeing boards, and the makeup and power of those boards. They will develop needs assessments for their patch, and consortia must consult them when publishing their annual commissioning plans.
Health and wellbeing boards will be able to include a statement in consortia’s plans saying whether they think it accords with their needs assessment.
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