The future of delegating NHS Continuing Healthcare

NHS Continuing Healthcare is complex. The service is a legally complicated area that straddles health and social care and continues to be scrutinised by the Parliamentary and Health Service Ombudsman and the courts. 

Under the NHS Continuing Healthcare (responsibilities) directions 2009, the responsibility for ensuring that assessments of healthcare needs are made and eligibility for care is determined in a consistent manner across England lies with primary care trusts. 

Continuing care is becoming an increasingly important issue for clinical commissioning groups, which will be responsible for it from 1 April. 

The directions will be replaced by standing rules on continuing healthcare for CCGs. It is also likely that the functions regulations, which underpin the current directions, will be amended as a minimum to replace references to PCTs with references to CCGs. 

‘CCGs are likely to be in a similar position to PCTs, able to delegate their decision making duties and functions to other bodies’

However, until the draft standing rules, and to some extent the amendments to the functions regulations, are published we cannot know exactly how things will work.

At the time of transforming community services, when PCTs split their commissioner and provider functions, we considered whether trusts could delegate their continuing care duties in their entirety to their former provider services.

This was an issue for PCTs particularly where their provider services became social enterprise entities (outside the NHS) or had been transferred to foundation trusts. 

What are the powers of delegation? 

We have been wondering what the position will be for CCGs that wish to delegate their functions to commissioning support units in April 2013, particularly if those units float off as non-NHS bodies in 2016 or beyond.

When we were looking at the impact of the TCS programme, we noted a distinction in the directions between the performance of a PCT commissioner’s statutory duties and functions and the commissioning of services for NHS patients.

Where the directions referred to the performance of a trust function the obligation fell on the PCT to meet the requirement directly, such as to make an eligibility decision.

But where the directions referred to a service to be provided to NHS patients, the directions required the trust to ensure the service was provided, such as the carrying out of an assessment of needs.

We expect that the position under the current directions will be carried over into the new standing rules for CCGs and will be that:

• the making of eligibility decisions (ie: deciding whether a full assessment of eligibility should be undertaken, using the completed decision support tool to inform and make a decision on eligibility) will be duties and functions of the statutory body (ie: the CCG); 
• all other aspects of continuing care such as the carrying out of needs assessments, the completion of the DST and the making of recommendations as to eligibility, as well the provision of services, will be NHS services to be commissioned by the CCG to be provided to NHS patients (under section 12 of the NHS Act 2006, the secretary of state can make arrangements for the provision of any service under the act. This power is currently delegated to PCTs and will be given to CCGs).

We then looked at PCTs’ powers to delegate their functions and noted that trusts are limited to delegating their functions to NHS bodies listed in the functions regulations and cannot delegate to independent sector social enterprise organisations or even to foundation trusts

Will CCGs have the power to delegate to CSUs?

On this basis, CCGs are likely to be in a similar position to PCTs, in that they are likely to be able to delegate their decision making duties and functions to other bodies but it is unlikely they will be able to commission the performance of their duties and functions by another NHS body, such as a CSU hosted by the NHS Commissioning Board, under a contract for services. 

‘The intention is to establish a market in commissioning services from which CCGs can buy in the support services they require’

We expect this position to be replicated. This will mean, provided the board is included in any list of NHS bodies to which CCGs can delegate functions (we expect it will be), groups will be able to delegate both their continuing care decision making functions and the commissioning of services to CSUs for as long as the latter remain hosted by the board (ie: for as long as they remain within the NHS).

However, CCGs may wish to retain the decision making function for themselves and they may do so. In such cases they will need to have a continuing care lead who formally makes decisions to undertake full assessments and reviews and to accept or reject multidisciplinary team recommendations about eligibility.

What happens in 2016? 

The current expectation is that until April 2016, CSUs will continue to be hosted by the NHS Commissioning Board. However, by 2016 they are expected to have made the transition from statutory bodies to “free standing enterprises” and threfore may be independent bodies outside the NHS.

The intention is to establish a market in commissioning services from which CCGs will be able to buy in the support services they require. 

Therefore, after 2016, it all depends on the status of the CSUs once they are floated off from the board. 

If they are to be independent from the NHS and not statutory bodies, it is highly unlikely CCGs will be able to delegate their decision making functions to them. This will mean if a commissioning group has not retained that function itself in 2013-2016 then it will need to take that function back from CSUs in 2016. 

However, we expect CCGs will be able to continue to commission all other continuing care services from CSUs or other providers, whether they are within or outside the NHS.

Julie Jordan is an associate at Mills & Reeve, julie.jordan@mills-reeve.com