The Health Bill awards the NHS Commissioning Board “draconian” powers to intervene in and split up “failing” commissioning consortia, analysis by HSJ and NHS legal experts Beachcroft finds.

The bill states the board has a raft of powers to use if it is “satisfied that a consortium is failing or has failed to discharge any of its functions, or there is a significant risk that a commissioning consortium will fail to do so”.

They include telling the consortium what to do directly, sacking its accountable officer, requiring it to be taken over by another, splitting it up and transferring its property and staff, and dissolving the consortium entirely.

Every year the NHS Commissioning Board must carry out a “performance assessment of each commissioning consortium”. It can order consortia to “provide an explanation” if it believes one “might have failed, might be failing or might fail to discharge any of its functions”, or has changed its makeup so its “area is no longer appropriate”.

Although little is defined about consortia makeup and governance in the bill, the board also has powers in this area. It can issue guidance on “the form, content or publication” of consortia constitutions, and the authorisation regime.

Anne Crofts, partner at law firm Beachcroft, said: “The board is being given quite draconian powers” and had been quite “heavy discretion” about how and when it could use them.

Ray Tarling, a senior adviser at Beachcroft LLP with a background in health governance, said the relationship between the NHS Commissioning Board and consortia had the potential to be similar to the current relationship between Monitor and FTs.

“The NCB powers are broad in scope and have the potential to be severe in application. The NCB are left quite a lot of scope for interpretation.

“For a commissioning consortia it’s going to feel a lot like an FT feels when being regulated by Monitor. They’re going to need to prepare for this and design governance arrangements that can cope with that.”

Notes from the Department of Health accompanying the bill say further details of the failure regime will be set out in regulations.

It says: “Regulations would also set out matters such as the procedure that the board must follow before it can exercise its power to intervene in the event of failure or the risk of failure.

“It is intended that the interactions between the board and consortia would be conducted in a transparent ‘rules based’ manner, where consortia are aware of the expectations upon them and the board has appropriately circumscribed powers: the prescription of further detail is considered necessary to achieve that.”