Mills & Reeve Response to the White Paper Equity and Excellence: Liberating the NHS

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Mills & Reeve Response to the White Paper Equity and Excellence: Liberating the NHS

Mills & Reeve Response to the Health White Paper 1 Introduction 1.1 This response contains our general comments on the current proposals set out in the White Paper. Please note that we are also submitting responses to the more specific consultation papers relating to Commissioning for Patients, Local Democratic Legitimacy in Health and Regulating Healthcare Providers. We have sought not to duplicate here any of the comments in those responses. The following comments are additional to, and intended to be read in conjunction with, our other consultation responses. 2 Real estate 2.1 We recommend that PCTs receive urgent guidance about signing up to new lease commitments and renewal leases to avoid the possibility of being left with surplus interests and liabilities in 2012/13. 2.2 Consideration needs to be given to the future of PCT HQ/administrative offices. Typically these will be leased and are likely to be unattractive to the new GP consortia who will either have their own premises or will not need buildings of the same size or in that location. Who will be responsible for residual liabilities such as outstanding rents on the residue of a leasehold term will be clearer in due course in our view it is more appropriate to go up to the NHS Commissioning Board rather than down/across to the GP consortia. GP consortia will resist taking on these commitments, which could affect their financial viability. 2.3 When transferring HQ/administrative offices or operational estate a key issue to be addressed will be the covenant strength of and the attractiveness or otherwise of the GP consortia to commercial landlords. Much will depend on their legal structure and the exact nature of the statutory entities that are envisaged for example whether they are NHS bodies as defined under s28 the NHS Act 2006. Landlords may be reluctant to consent to assignments unless the Secretary of State for Health (SSH) provides a covenant (along the same lines as the deeds of safeguard given by the SSH to provide further reassurance for Foundation Trusts in PFI deals). Alternatively it could be effected by outgoing PCTs providing authorised guarantee agreements backed by the SSH. Where premises are going to be surplus, PCTs should start negotiations earlier rather than later. 3 NHS Local Improvement Finance Trust (LIFT) 3.1 The Department of Health (through Community Health Partnerships), local participants such as PCTs and Local Authorities and private sector partners have all invested a significant amount of time and funding into the LIFT programme. 79976504_2/4 Oct 2010 1

Proposals specifically dealing with the treatment of LIFT interests and facilities will be required in order to support the White Paper proposals. Well before PCTs go choices will have to be made in relation to: 3.1.1 whether the exclusivity arrangements set up under the Strategic Partnering Agreements will continue and if so who will be bound by them; 3.1.2 where PCTs equity, sub-debt in LiftCo s should transfer; 3.1.3 where PCTs interests and obligations under Lease Plus Agreements and Land Retained Agreements should go; 3.1.4 once the above decisions are made there are further issues such as who takes over the role formerly taken by SHAs i.e. considering any derogations from standard forms. 3.2 On the current proposals the most logical PCT successor in LIFT would be the proposed NHS Commissioning Board, which it is understood is proposed to take responsibility for the commissioning role relating to GP and some other primary care services. This links in with the original DH advice that primary care estate should remain with the commissioners rather than creating an unfair advantage for a current provider. It will be important however to work through the implications of this including a comparison with other options: 3.2.1 the geographical areas which the NHS Commissioning Board (even if acting through regional offices) will be covering will be much larger than the original LIFT areas which puts at risk losing some of the local benefits of the initiative; 3.2.2 the original vision of LIFT was that GPs themselves would take the head leases and arrangements from the LiftCos. In the end this did not happen as there was a momentum from the PCTs who wanted to ensure that the LIFT projects happened within a certain timetable. It is worth revisiting the original plan behind LIFT and considering whether the move to GP led commissioning and the emergence of the GP consortia represents an opportunity to ensure full ownership of the LIFT facilities and also presents more opportunities to make use of the framework for the future; 3.2.3 s70 of the NHS Act 2006 requires that PCT liabilities are dealt with by being transferred to an NHS body. Unless this legislation is amended this may restrict what options are available depending on how GP consortia are established; 3.2.4 in some cases it may be logical for Local Authorities to take over the PCT interests. Some LIFT areas have benefitted from some strong local relationships which have resulted in integrated health and leisure/sports facilities for example and with the Local Authorities taking responsibility 79976504_2/4 Oct 2010 2

for public health it might work well in those areas for such facilities to fall under their control; 3.2.5 the DH still holds some residual NHS estate. One option that should be considered is that the PCT estate and obligations (under LIFT and possibly more widely too) are transferred to the DH then managed through their wholly owned Community Health Partnerships arm. This arm could also be the recipient of the various PCT LIFT shareholdings and could then be managed from the recently decentralised regional offices of the same. 3.3 We have been involved with numerous LIFT schemes from public sector participants, GP tenant, investor and senior funding perspectives. This has resulted in us developing a significant amount of experience and insight. Accordingly we would be very interested in contributing to any discussions or working groups that are looking at the best way of managing existing LIFT interests as well as the wider question of where the PCT estate and interests should go. 4 Employment issues 4.1 The application of TUPE is a key issue from a workforce point of view, and clarity is needed as to whether the provisions of the Cabinet Office Statement of Practice on Staff Transfers in the Public Sector providing TUPE equivalent protection and broadly comparable pension provision will be applied. Clarification is also needed for employers as to whether the provisions of the two tier workforce code will be applied together with clarification as to the impact of the White Paper on TUPE and pension issues under s75 partnership agreements. 4.2 Flexibility and cooperation is key during the transition period, and therefore clarification with regard to the powers to second staff to GP consortia and to local authorities is welcomed. 4.3 Given the endorsement of Agenda for Change as a non-discriminatory job evaluation scheme following the Hartley judgment, trusts will need to ensure that local pay schemes do not give rise to equal pay challenges. 5 Patient involvement/healthwatch 5.1 At paragraph 2.8 of the White Paper it states that hospitals will be required to be open about mistakes and always tell patients if something has gone wrong. It will be important to balance this with the NHSLA Apologies and Explanations circular dated 1 May 2009 which provides that explanations should not contain admissions of liability. 5.2 Choice is compatible with the concept of patient autonomy. However the public need to be clear that rationing is an inevitable part of the NHS provision of services. Patients cannot demand services. In the past there has been a political reluctance to accept that there is an element of rationing. The wording of s3(1)(e) of the NHS Act 79976504_2/4 Oct 2010 3

2006 is important in this context. The NHS does not have a legal obligation to meet all the healthcare needs of its patients. Section 3(1)(e) provides that services should be provided to such extent as the Secretary of State considers necessary to meet all reasonable requirements. This presents itself very clearly in the world of NHS Continuing Healthcare when patients seek domiciliary care when nursing home care is substantially cheaper. 5.3 If patients are to have choice to register with any GP practice how will issues relating to e.g. Out of Area placements be organised? Will a GP practice in one consortium make decisions impacting on a GP practice in another consortium? Presumably the Responsible Commissioner Who Pays Guidance dated September 2007 will need to be rethought along GP consortia lines. 6 Information governance 6.1 Paragraph 2.6 of the White Paper refers to enabling patients to communicate with their clinicians about their health status on line. This presents a myriad of issues to be addressed with regard to protecting patient confidentiality. 6.2 Paragraph 2.11 of the White Paper refers to enabling patients to have control of their health records. How will this fit in with the provisions of the Data Protection (Subject Access Modification) (Health) Order 2000? It will be important to ensure that information is not disclosed which is likely to cause serious harm to the physical or mental health or condition of the patient or any other person. 7 Public health and social care 7.1 There is a significant overlap between health and social care. The report on funding of long term care is not due until the summer of 2011 and the Social Care White Paper is not due until October 2011. In addition, social care legislation is to be reviewed. It makes more sense for this to be expedited to ensure changes are harmonious. 7.2 There is a lot of merit in closely aligning aspects of health and social care. However, local authority budgets will not be protected, so there is bound to be tension between the public health and social care budgets. 7.3 Much is said about adult social services, however, we must not overlook those who rarely have a voice such as the homeless, asylum seekers, etc when we are considering the local needs of the society and the commissioning of services. 8 Mental health and mental capacity 8.1 Since November 2008 there has been the concept of Approved Clinicians in the field of mental health. SHAs are currently charged with exercising the function of approving persons to act as Approved Clinicians. They direct PCTs to do this. Who is going to do this going forward? Transitional arrangements will be very important. 79976504_2/4 Oct 2010 4

8.2 Currently SHAs approve s12(2) approved doctors under the National Health Service (Functions of Strategic Health Authorities and Primary Care Trust Administrative Arrangements) (England) Regulations 2002. Again this can be delegated to a PCT. See 4.103 of the Mental Health Act Code of Practice for the steps SHAs are expected to take. Who is going to do this going forward? Transitional arrangements will be very important. 8.3 Currently PCTs have a duty under s117 of the Mental Health Act 1983 ( MHA ) to provide (jointly with local authorities) aftercare services when a patient is discharged from various sections of the MHA. Who will that duty now fall on? 8.4 A court may seek information from a PCT under s39 MHA as to the availability of suitable hospital places in their area. Will this transfer to the NHS Commissioning Board? 8.5 Mental Capacity Act PCTs are currently supervisory bodies under the Deprivation of Liberty Safeguards legislation. Will this transfer to the NHS Commissioning Board? 8.6 PCTs currently commission ambulance and patient transport services this includes transporting patients to and from hospital and other places. This aspect should not be overlooked in reallocation of PCT duties. 8.7 Advocacy Independent Mental Health Advocates (IMHAs) and Independent Mental Capacity Advocates (IMCAs) are currently commissioned by PCTs. Who will do that going forward? 9 Inspection bodies 9.1 There seem to be a proliferation of bodies inspecting and reviewing the NHS. Given all the changes that are being considered at present it seems sensible to consider how best scrutiny and external review can be undertaken in order to minimise different bodies auditing, reviewing and reporting on the NHS and asking the NHS for different information in different formats. The more bodies involved the greater the likelihood of key data slipping between two stools and one body thinking that another body is aware or dealing. 10 Prison Health 10.1 The Commissioning for Patients consultation paper states that this will fall within the remit of the NHS Commissioning Board, which will determine appropriate arrangements with GP consortia. Prisons are complex and difficult environments in which to provide care and this is an important area which should not be overlooked particularly given the interrelationship between both the prison service and the NHS. 79976504_2/4 Oct 2010 5

11 Priorities 11.1 The NHS Commissioning Board is to have a duty to address inequalities in outcomes. Postcode prescribing is already a criticism made by patients seeking, for example, access to high cost drugs or particular surgical treatments. Is this not going to be exacerbated by greater numbers of GP consortia? How will the NHS Commissioning Board deal with this? Previously a GP could, in conjunction with a hospital consultant, recommend a drug and blame the PCT who refused to fund. Now GPs will have to recommend and make funding decisions? Will we find a situation where GPs do not recommend a drug in order to avoid saying no? 12 NHS Continuing Healthcare 12.1 No mention has been made of this in the White Paper. How will this be dealt with in the brave new world? A lot of time has been invested with PCTs working on the Revised National Framework. That will have to be completely rewritten and the legislation around it changed. 13 Review of NHS legislation 13.1 The NHS Act 2006 contains a number of significant drafting flaws which were not addressed when the 1977 Act, and later legislation, were consolidated. In legislating for the reforms, there is a clear opportunity for existing NHS legislation (to the extent that it is not to be repealed) to be clarified and made more robust. 14 Contracts 14.1 The White Paper states that the NHS Commissioning Board will be responsible for producing standard/model contracts for use by GP consortia. The existing standard NHS mandatory contracts can be too inflexible in practice, and do not allow enough scope for adaptation where it is genuinely required in order to reflect actual requirements/circumstances and get the best deal commercially. The reforms present an opportunity to provide more flexible contracts, which could assist in encouraging innovation in service provision. 14.2 It is indicated that there will be a new primary medical care contract for GP practices. Given that this will link into GP commissioning by containing a payment linked to commissioning consortium outcomes, it would be useful for the new contract to be implemented to the same timescales as the implementation of GP commissioning. 14.3 It would be useful to know as soon as possible whether GP consortia will have health service body status, as this impacts on how they will operate and the status of some of their contractual arrangements. This is relevant to take into account during the planning and transition stages. 79976504_2/4 Oct 2010 6

15 Performers list management 15.1 The White Paper is silent on the important regulatory functions carried out by PCTs in relation to performers list management. These were introduced to ensure that we never had another Shipman on our hands, recognising that regulation at a local level was one of the key safeguards in this area. Clarity is needed around where this important function will sit in the future. To discuss any of the issues raised in this document please contact: Bridget Archibald Partner and Head of Health for Mills & Reeve LLP +44(0) 1223 222436 bridget.archibald@mills-reeve.com 79976504_2/4 Oct 2010 7