Typically when we first set out on a journey we are not thinking about what can go wrong. But if we are driving we do take some basic precautions; we have the car serviced, make sure our breakdown coverage is up to date and of course we can rely on our seatbelts and air bags should we have an accident.

Current guidance around the formation of provider chains rightly centres on the possible gains and is facilitative rather than didactic in approach. It would be natural therefore, for NHS organisations considering collaboration with their neighbours, or with organisations further afield, to concentrate on delivery and on what can be achieved together that they couldn’t deliver alone. However, that doesn’t mean that they should set off on their journey without the business equivalent of air bags and seat belts. In our recent publication, produced in partnership with Hempsons, New care models: Governance between organisations, we set out some of the ways in which NHS providers can set up robust arrangements to lead and direct new forms of provision. We also made the case for setting up arrangements to deal with problems from the outset, and not waiting until they arise. We did so not because we favour bureaucracy, but because things can and do go wrong when organisations seek to deliver services together and unforeseen differences about the best way forward do arise even when all of the partners share a common goal and have the best intentions. If they are anticipated when relationships are strong, they will be easier to resolve at a later date.

We would advocate ensuring that any new collaboration or venture is based on sound legal footing

So what arrangements do NHS providers need to make? We would advocate ensuring that any new collaboration or venture is based on a sound legal footing. For service line chains a contract is probably the best way forward. Whether an organisation is effectively renting space to carry out procedures or taking on the running of an entire service on behalf of another trust, a comprehensive contract is advisable. Discussing who is responsible and who pays when a procedure has turned into emergency care and then to intensive care is best done well before such an event has ever happened. While every organisation will do its utmost to ensure safe care, in a business as high risk as healthcare untoward incidents may occur, so it is crucial to anticipate and deal with what will happen from the outset.

For whole organisation chains, although time and resource intensive, transactions are well worth considering. They allow for clarity in leadership, direction and accountability and there is no need for contractual interpretation or the complexity of delivering good governance between organisations. However, it is conceivable, that a series of management contracts or even joint ventures encompassing a chain of whole organisations could be envisaged – a theme which may be explored by the forthcoming vanguards for acute care collaboration. Whatever way forward is chosen, the need for sound legal foundations is readily apparent.

We know our members are committed to delivering more integrated and preventative approaches

In the context of the above it should be noted that informal collaboration doesn’t necessarily free organisations up just to get on with delivery. The Competition and Markets Authority (CMA) can consider whether collaborations trigger competition issues. In addition, the directors of all of the organisations involved will be jointly and severally responsible and potentially liable if things go wrong regardless of whether a joint committee is notionally in charge. The regulators may well decide to hold each of the collaborating organisations to account for delivery of the entire service, not just the part they provide. Nor will boards be able to divest themselves of responsibility for service they are contracted to provide just because a partner in a collaboration is actually delivering the service in question.

We know that our members are committed to delivering more integrated and preventative approaches. Many NHS providers are working with their local health and care partners to develop more collaborative approaches to improve quality and ensure the sustainability of services for the future. In the interests of ensuring these endeavours have every chance of success, our advice is to think carefully if informal collaborations are about more than buddying-plus arrangements based on sharing or jointly developing best practice. To do otherwise is the equivalent of driving without the available safeguards of a seat belt or air bags. It is fine as long as nothing goes wrong.