How could the new statutory duty of partnership placed on health and local authorities change existing relationships and working partnerships? David Owens thinks the road leads to conflict
The New NHS white paper emphasised the way in which 'co-operation will replace competition' and specified a formal duty of partnership to enforce it.
The white paper states: 'To give substance to the co-operation necessary to bring about improvements in health, there will be a new stautory duty of partnership placed on local NHS bodies to work together for the common good. This will extend to the local authorities, strengthening the existing requirements under the 1997 NHS Act'.1
The white paper does not go into detail, and there has been little guidance as to how this duty of partnership is expected to operate. But it is clear that the starting point will be the existing duty imposed on health authorities and local authorities under Section 22 of the 1997 NHS Act.
This states: 'In exercising their respective functions, health authorities and special health authorities (on the one hand) and the local authorities (on the other) shall co-operate with one another in order to secure and advance the health and welfare for the people of England and Wales.'2
It also states: 'There shall be committees to be called joint consultative committees who shall advise bodies represented on them on the peformance of their duties under sub-section 1 above and on the planning and operation of services of common concern to those authorities.'
The history of co-operation between the health service and social services and other local authorities has been uneven. In some places, there is close co-operation; in others, there are difficulties over communication and policy. Enforcement of this type of duty is also patchy.
The NHS Executive may exercise some influence over HAs but there is less scope for the Department of Environment, Transport and the Regions to do the same for a local authority. In some cases, enforcement comes through a judicial review application seeking to attack a health or social services decision on the grounds that, among other things, the authority has failed to properly co-operate with its counterparts.
In this context, although there is no statutory duty of co-operation placed on trusts, they do have to take account of guidance, including the Policy Guidance on Community Care which states: 'Changes to existing practices must not result from unilateral disengagement by any party from services for which they currently take responsibility and provide resources'.3
The new duty contemplated by the white paper will go beyond that contained in section 22 by formally including trusts within its remit. It is also expressed in terms of a duty of partnership, which implies something going beyond the section 22 duty to co-operate while remaining within the confines of the organisation's respective functions.
The white paper makes it clear that the duty of partnership will be underpinned by the sharing of information between organisations, and the focus would appear to be the health improvement plan.
This plan will effectively define the local healthcare strategy and is likely to operate as a touchstone both for trust plans and primary care group decisions. I would suggest that the duty is likely to be framed with specific reference to the health improvement plan.
The extent to which the duty will, either expressly or by interpretation in the courts, impose obligations on trusts to operate consistently with the health improvement plan may constitute a significant curtailment of their previous freedom of action. It may also make changes in HA and PCG plans more difficult to bring about.
The health improvement plan model has been used extensively in the context of planning policy, and there are some concerns that as a result the planning process will become slow and bureaucratic where sought changes or development conflict with a plan which may now be outdated.
The government's consultation paper Partnerships in Action provides some proposals for how health and social services bodies can work together, including possibilities for pooled budgets and for easier cross-over in the provision of services across the health and social care range.
These new proposals, together with the health action zone programme, clearly indicate a policy of encouraging services which focus on care pathways for individuals and groups rather than on organisational structures. This underlines the need for the duty of partnership to operate in a way that goes beyond a narrow view of the functions of the organisation.
This may give rise to some new legal arguments over the way such a duty can operate given the general position of bodies created by statute which have powers only to do that which statute expressly empowers them to do. The courts have certainly taken a restrictive attitude to the extent of general powers in other contexts.
One concern regarding the possibility of additional powers being granted for use in a partnership context is that there may be the risk of challenge to decisions of individual bodies who have not taken advantage of the additional powers on the grounds that to decline (??) to do so is in breach of their duty of partnership.
The differing nature of health service and local authority bodies may also be a source of conflict. Local authorities are directly answerable to their local electorate, and subject to local political controls.
Where a local authority is controlled by the political group not in government, it does seem that there is, at the least, a significant risk that serious policy differences may arise between the local authority and health service bodies seeking to implement the government's approach to a particular issue. At present, there is little suggestion as to how this type of dispute can be resolved within the context of a partnership duty.
There is also the underlying problem that partnerships are about trust and confidence in one another; these can only be developed on the basis of personal relationships between the individuals concerned and certainly where the central focus for the partnership is the creation and implementation of a strategy such as a health improvement plan. The commitment in terms of time on the part of the relevant managers for the organisations involved in these partnership arrangements will be very substantial. It remains to be seen how far that can be accommodated within present financial constraints.