NHS England (sections 1-17; Schedule 1)
Summary
These sections make a number of provisions related to NHS England and its ways of working. This includes:
- renaming the NHS Commissioning Board as NHS England
- giving the secretary of state the power to veto any proposal from NHS England on the commissioning of specialised services
- changes to how and when the mandate to NHS England is set
- requiring greater transparency on mental health spending
- applying the triple aim duty to NHS England, requiring it to have regard to the likely wider effects of making any decision to exercise its functions.
Further provisions include:
- broadening the powers of NHS England to give assistance and support to any provider of NHS services or any body carrying out the functions of the NHS (this includes ICBs and non-NHS bodies providing NHS services)
- enabling NHS England to give directions to one or more ICBs in respect of any of the ICB's functions (including delegation arrangements) and payments. Regulations may be made limiting this power. The rights and liabilities incurred by an ICB as a result lie with the ICB alone
- extending the right to be included in public involvement and consultation to carers and representatives
- requiring the objectives specified in the mandate to include outcomes for cancer patients, with those objectives to be treated by NHS England as having priority over any other objectives relating to cancer performance (such as process measures).
In addition:
- NHS England is required to prepare consolidated accounts for NHS trusts and foundation trusts and submit them to the secretary of the state and the comptroller and auditor general, and then to parliament along with any related report of the comptroller and auditor general
- NHS England has a duty to reduce inequalities and to set out the powers of NHS bodies to assess inequalities, as well as to report on the extent to which these powers have been exercised each year
- the secretary of the state has the power to direct NHS England in the use of payments made to it for the purpose of integration. NHS England can make payments to ICBs in respect of integration
- payments for quality can be designated by direction, with the previous power of the secretary of the state to make regulations in respect of these payments removed
- the right of NHS England to accept secondments from designated bodies is extended.
Key sections
Section 3: Mental health spending
The secretary of state will publish each financial year the government's expectations as to increases in the amount in, and in the proportion of, mental health spending by NHS England and ICBs and explain why. ICBs will also be required to report on mental health spending.
NHS Providers view and activity
We encouraged parliamentarians to support amendments which introduced transparency on mental health spending into the Act and widened the definition of 'health' to include mental health in the NHS Act 2006.
Section 4: NHS England mandate: general
This section removes the requirement for a mandate to be set before the start of each financial year. Instead, a mandate can be set at any time and remain in force until it is replaced by a new mandate.
These changes remove the statutory link between the mandate and the annual financial cycle, and in future NHS England's annual limits on capital and revenue resource are given statutory force through financial directions.
Section 8: NHS England: wider effect of decisions
This section places a duty on NHS England to have regard to the likely effects of making any decision to exercise its functions on:
- the health and wellbeing of the people of England
- the quality of health services provided
- efficiency and sustainability across the NHS.
NHS England must produce guidance as to how it will exercise this duty. References to health and wellbeing and the quality of services provided must include a reference to its effects in relation to inequalities.
National context
NHS England is developing guidance setting out expectations for how NHS bodies should work in partnership with people and communities. They are also developing guidance on the 'triple aim' duty.
This section applies the triple aim duty to NHS England, with later sections applying it to ICBs, trusts and foundation trusts, as well as in the context of the licensing of healthcare providers (see sections 25, 52, 67 and 76).
NHS Providers view and activity
This legislates for decision-making which balances health and wellbeing, the quality of services, and efficiency and sustainability within a constrained resource envelope. While in many ways this reflects the status quo, this section does offer a new legal basis for decisions. Our expectation is that such decisions would always be clinically led and evidence-based, but this may nevertheless be concerning for services which have been subject to local variation in the past.
Section 15: Funding for service integration
This makes provision for a fund for the integration of care and support with health services, known as the Better Care Fund (BCF), and allows for the secretary of state to provide directions requiring NHS England to use a specified amount of this annual payment for purposes relating to service integration. This provision has to come into force before April 2023.
Where the secretary of state has given a direction about the use by NHS England of the annual amount, NHS England may direct ICBs that a designated amount of the annual payment is to be used for purposes of service integration.
National context
The intention is to decouple the BCF from the process of producing the NHS England mandate, rather than to fundamentally change the focus of the BCF.
Integrated care boards and Integrated care boards: functions (sections 18-25; Schedules 2 and 3)
Summary
This chapter of sections and its schedules amend the National Health Service Act 2006 (the 2006 Act) to describe the composition, constitution, and functions of ICBs.
NHS Providers view and activity
NHS Providers worked extensively with the Department of Health and Social Care (DHSC) and NHS England to maintain sufficient flexibility for ICBs and their constituent organisations to design what works locally. This included securing drafting changes before the Bill was published which means an ICB will be required to work with its partner trusts and foundation trusts in preparing its five-year forward plan.
We also successfully secured ministerial assurances that the provision to prevent private providers from sitting on the ICB or its committees would not inadvertently prevent social enterprises or NHS providers from participating.
Key sections
Section 19: Establishment of integrated boards; and Schedule 2
National context
NHS England will be publishing guidance on the process for amending ICB constitutions. Subsequent guidance will address the duty of ICBs to review the skills and experience of their board.
ICBs will take on the commissioning functions and duties of CCGs, which will be abolished on the same day (1 July 2022) that ICBs are established as corporate bodies. The CCGs within the system footprint must consult with relevant parties and propose the first ICB constitution, taking into account any guidance published by NHS England (such as the guidance to CCGs on preparing ICB constitutions).
The composition of an ICB will, at a minimum, consist of a chair, chief executive and at least three other members. One of those members is jointly nominated by NHS trusts and foundation trusts, one by primary care services and one by local authorities providing services within the ICB footprint. Beyond that, local systems will have the flexibility to determine any further membership. NHS England will appoint the ICB chair and have the power to remove them, with secretary of state approval in either instance. The ICB chief executive will be appointed by the chair, with NHS England approval. The chair will approve the appointment of ordinary members (that is, member other than the chair or chief executive).
National context
Who can nominate an ICB member? The secretary of state laid draft regulations in May 2022 setting out which trusts, foundation trusts and primary care providers may participate in the process for nominating partner members to the ICB board. NHS England also set out the criteria in guidance to CCGs on the preparation of ICB constitutions (13 May 2022).
Trusts will be eligible if they are essential to the development and delivery of the ICB's five-year forward plan, including those that work across several systems (such as ambulance trusts). Where a trust or foundation trust does not meet this condition, they will be eligible in the ICS where they receive the largest proportion of ICB income.
Each ICB must publish its constitution, which should set out how members are to be appointed and by whom, and the process for nominating ordinary members (Schedule 2). The constitution must also provide for committees or sub-committees of the ICB to be formed. NHS England will publish guidance in relation to the selection of candidates. The Act gives significant flexibility on the membership of ICB committees, allowing individuals to be appointed who are neither ICB board members nor employees.
National context
NHS England stated in guidance on ICB constitutions (May 2022) that it is likely that ICBs will need to establish committees to support the board and exercise any delegated functions.
A number of requirements for ICBs have been set. This includes an ICB board being required to keep under review the skills, knowledge, and experience that it is necessary to have on the board and take steps to address or mitigate shortcomings. The chair must ensure that at least one ordinary member has knowledge and experience of mental health services. In addition, the constitution must prohibit the appointment of someone if the board considers that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate's involvement with the private healthcare sector or otherwise (Schedule 2).
National context
During the passage of the legislation, parliamentarians made clear that they wanted to see clearer executive leadership on certain issues. The guidance on the preparation of ICB constitutions (May 2022) confirms how an ICB is required to identify named executive board member leads for safeguarding and special educational needs and disabilities (SEND), and for children and young people's services. The guidance states that these are not new statutory duties or additional board posts, but rather intended to secure visible board-level leadership of these issues.
Sections 21: Commissioning hospital and other health services
This amends section 3 of the NHS Act to require ICBs to commission hospital and other health services for those persons for whom the ICB is responsible.
Section 22: Commissioning primary care services etc; and Schedule 3
This inserts Schedule 3 which amends the NHS Act 2006 to give ICBs responsibility for medical, dental, and ophthalmic primary care functions. It contains other amendments relating to primary care services.
Section 25: General Functions
An ICB has several duties, including but not limited to:
- improving the quality of services, reducing inequalities in access and outcomes
- promoting integration between health, social care, and wider services
- having regard to the 'triple aim' duty.
Further, an ICB must:
- ensure patients and communities are involved in the planning and commissioning of services
- have regard to NHS England's guidance for ICBs on the discharge of their functions
- manage conflicts of interest.
Section 25 (along with Schedule 2) sets out that the ICB and its partner trusts and foundation trusts must prepare a five-year forward plan setting out how they propose to exercise their functions. In doing so, they need to have regard to and consult with relevant health and wellbeing boards (HWBs) and their strategies. The plan must set out any steps that the ICB proposes to take to address the particular needs of children and young people, and any steps the ICB proposes to take to address the particular needs of victims of abuse (including domestic abuse and sexual abuse, whether of children or adults). An HWB may give NHS England its views on whether an ICB's plan takes into account local health and wellbeing strategies sufficiently.
National context
We expect DHSC guidance on the areas it thinks the integrated care strategy is well placed to address, and that this will inform the creation of integrated care strategies by December 2022 (ahead of the ICB's five-year forward plan due in April 2023).
NHS England will publish guidance in autumn 2022 setting out further expectations on the ICB's five-year forward plan.
An ICB and its partner NHS trusts and NHS foundation trusts must also create a joint capital resource plan for a period specified by the secretary of state. The ICB must prepare accounts and create an annual report. Each ICB must produce and publish an annual report on how it has discharged its functions, as well as its performance on the forward plan and capital resource plan. The annual report must also cover information relating to inequalities and mental health expenditure. NHS England will also have the power to obtain information from ICBs.
NHS England will conduct a performance assessment of each ICB each financial year. If NHS England deems an ICB to be failing or at risk of failure, NHS England will have powers of direction over the ICB (including prohibiting or restricting the ICB from delegating functions) and may terminate the appointment of the chief executive and direct others to exercise the ICB's functions.
The Act confers a duty on ICBs to commission primary care, and NHS England may direct an ICB to exercise any of NHS England's primary care functions (Schedule 3).
NHS Providers view and activity
NHS England published its Roadmap for integrating specialised services within ICSs on 31 May 2022 outlining how it envisages commissioning arrangements for specialised services developing over the next few years, following ICSs taking statutory form in July. Our preliminary analysis can be found here.
Integrated care partnerships (section 26)
Summary
The Act states that an ICB and relevant local authorities must establish a statutory joint committee for the system – an ICP – which will bring together partners from across the system to address the health, social care, and public health needs of the population. The ICP membership includes one member appointed by the ICB, one member appointed by each of the relevant local authorities, and any other members appointed by the ICP. The ICP will be able to determine its own procedures locally.
Each ICP must prepare an 'integrated care strategy', building on the relevant joint strategic needs assessments to meet the assessed needs of the local population. This strategy must consider the effectiveness of establishing section 75 arrangements, the NHS mandate and guidance issued by the secretary of state. Healthwatch and local communities must be involved in its creation. An ICP may include in this strategy a statement of its views on how the provision of health-related services could be more closely integrated with health and social care services. The strategy must detail how it will be delivered by the ICB, NHS England or the responsible local authority. If the ICB and local authority decide that joint local health and wellbeing strategies do not sufficiently address how the population's needs will be met, a new strategy will need to be prepared.
Section 75 of the National Health Service Act 2006 allows NHS bodies and local authorities to contribute to a common fund which can be used to commission health or social care related services.
National context
We expect DHSC statutory guidance in July 2022 on the integrated care strategy. We expect this guidance to set out that the strategy should consider child health and wellbeing outcomes and the integration of children's services. We understand ICPs will be required to consult children's system leaders, and children and families themselves, on the strategy. ICPs, where appropriate, will be expected to consider in the integrated care strategy where there are opportunities to further integrate family hub arrangements with health and social care services.
Integrated care system: financial controls (sections 27-30)
Summary
These sections set out the financial responsibilities of NHS England and ICBs. Each ICB must exercise its functions with a view to breaking even. Furthermore, each ICB and its partner trusts and foundation trusts must seek to achieve financial objectives set by NHS England and operate with a view to ensuring that local capital and revenue resource use does not exceed the limits specified in directions by NHS England in that financial year. NHS England may give directions to an ICB and its partner trusts and foundation trusts to ensure that they do not exceed these limits.
Section 29: Financial responsibilities of ICBs and their partners
Each ICB, and its partner NHS trusts and NHS foundation trusts, will be collectively required to deliver financial balance and seek to achieve financial objectives set by NHS England. A separate power will allow NHS England to set additional and mandatory financial objectives specifically for trusts. This builds on the existing duties placed on CCGs and trusts under the Health and Social Care Act 2012 and NHS Act 2006 respectively.
NHS Providers view and activity
The intention behind these provisions is to facilitate greater integration in healthcare and, in doing so, help each ICS deliver on its core purpose to improve outcomes, tackle inequalities, enhance productivity, and drive broader social and economic development. We expect the new financial regime to run smoothly in the vast majority of cases. However, in the extreme event that an ICB, trust or foundation trust feels it has been given an impossible task – for example, if its funding envelope is insufficient to meet patients' needs, potentially putting outcomes, quality of care and patient safety at risk – it is important that clear routes to recourse and challenge exist.
There is no objection mechanism in this provision despite there being a clear link between the funding available to a provider and its ability to deliver safe care. However, during proceedings in the House of Commons, the minister addressed what action could be taken if unexpected funding needs arise, explaining that DHSC can issue funding to NHS trusts and foundation trusts to enable them to continue operating safely. In line with the reforms to the NHS cash regime in 2020, trusts can access short-term revenue support in the form of public dividend capital. There may be circumstances where an ICB holds a deficit but the overall system delivers financial balance – in this case NHS England must be informed at the earliest opportunity. NHS England's 2022/23 revenue and contracting guidance also makes clear that if ICBs overspend in a given year, an additional interim efficiency requirement must be met by the ICB the following year.
Integrated care system: reviews and further amendments (sections 31-32; Schedule 4)
Summary
The Act introduces new duties on the CQC to review ICS service provision and local authority adult social care responsibilities.
Key section
Section 31: Care Quality Commission reviews etc of integrated care system
The CQC must conduct and publish reviews of the provision of relevant health care, and adult social care, within the area of each ICB. Its assessment will take into account how the board, its partner local authorities and registered service providers work together, as well as how the system functions as a whole.
The secretary of state will set the priorities and objectives of ICS reviews. The Act specifies a focus on leadership, integration, quality and safety. The CQC will determine the indicators of quality, methods, period, and frequency of these reviews with secretary of state approval.
NHS Providers view and activity
We sought and received assurances on the floor of the House that these powers will be used infrequently by the government so as not to disrupt CQC reviews. The government also affirmed that the government will fully respect the independence of the CQC.
Section 32: Integrated care system: further amendments; and Schedule 4
Schedule 4 contains minor and consequential amendments.
Merger of NHS bodies (sections 33- 39; Schedule 5)
Summary
These sections provide for the abolition of Monitor and the Trust Development Authority (TDA) and place a duty on NHS England to minimise and manage the risk of conflict between its regulatory and other functions.
Key sections
Section 33: Abolition of Monitor and transfer of functions to NHS England; and Schedule 5
This provides for the abolition of Monitor, with Schedule 5 making consequential amendments relating to the transfer of Monitor's functions to NHS England.
Section 34: Exercise by NHS England of new regulatory functions
This provision places a duty on NHS England to minimise the risk of conflict between its regulatory and other functions, and to manage any conflicts that arise.
Section 35: Modification of standard licence conditions
This section adds to current provisions to require an impact assessment before modification of standard licence conditions in all providers' licences or in licences of a particular description is allowed.
Section 36: Abolition of NHS Trust Development Authority
This provides for the transfer of powers from the TDA to NHS England and abolishes the TDA.
Secretary of state's functions (sections 40-47; Schedule 6)
Summary
These sections set out a number of powers of direction for the secretary of state, including in relation to public health, NHS England, safety investigations and reconfiguration. There is also a duty on the secretary of state regarding publication of an assessment of the workforce needs of the health service in England.
Key sections
Section 41: Report on assessing and meeting workforce needs
Section 41 sets out a duty on the secretary of state to publish, at least once every five years, a report describing the system for assessing and meeting the workforce needs of the health service in England. It also places a duty on Health Education England (HEE) and NHS England to assist the secretary of state in preparing the report, if asked by the secretary of state to do so.
NHS Providers view and activity
NHS Providers, along with a coalition of more than 100 health and care organisations, sought to persuade government and parliament of the need for greater robustness and transparency in support of long-term workforce planning. The coalition amendment was successful in the House of Lords but ultimately the government did not accept our proposals. We are disappointed that the provisions in the Act remain limited to publication of a description of the system and will continue to argue for a fully costed and funded workforce plan.
Section 42: Arrangements for exercise of public health functions
Section 42 allows for any of the secretary of state's public health functions to be exercised by NHS England, an ICB, a local authority that has duties to improve public health, a combined authority, or any other body that is specified in regulations.
Section 43: Power of direction: public health functions
This allows the secretary of state to direct NHS England or an ICB to exercise any of the public health functions of the secretary of state and provides for funding in relation to the functions to be exercised.
Section 44: Power of direction: investigation functions
This enables the secretary of state to direct NHS England (if considered to be in the public interest) or any other public body to exercise any of the investigation functions which are specified in the direction. The investigation functions here are those carried out, prior to this Act, by the HSIB under ministerial directions.
National context
Further to this section, we understand that the HSSIB will not have responsibility for HSIB's maternity investigation programme. This will instead be transferred for five years to a new special health authority (SHA) which will be operational from April 2023 after secondary legislation is passed.
Section 45: General power to direct NHS
Section 37 gives the secretary of state the power to direct NHS England in relation to its functions. There are exceptions to this power – the secretary of state cannot use the power in relation to the appointment of individuals by NHS England (including trusts and foundation trusts), individual clinical decisions, or in relation to drugs or treatments that the National Institute for Health and Care Excellence (NICE) have not recommended or issued guidance on as to clinical and cost effectiveness.
If NHS England fails to comply with a direction, the secretary of state may discharge the functions to which the direction relates or make arrangements for someone else to discharge them. When the secretary of state exercises this power, the reasons for doing so must be published.
Section 46: Reconfiguration of services: intervention powers; and Schedule 6
Section 46 gives the secretary of state intervention powers in relation to the reconfiguration of NHS services. Arrangements are detailed in Schedule 6, which places a duty on an NHS commissioning body (that is, NHS England or an ICB) to notify the secretary of state when there is a proposal to reconfigure services.
The secretary of state must be notified about significant reconfiguration proposals. The secretary of state may also call in any reconfiguration proposal, and may require consideration at any stage of the reconfiguration process.
The secretary of state has the power to take any decision which could have been taken by the NHS commissioning body. This includes:
- whether the proposal should or should not proceed, or whether it should proceed in a modified form
- the particular results that should be achieved by the NHS commissioning body in relation its decision on the proposal
- any procedural steps that should be taken
- retaking any decision previously taken by the NHS commissioning body.
The secretary of state is required to give relevant bodies an opportunity to make representations, and there is a six-month limit for the secretary of state to make a decision.
NHS Providers view and activity
NHS Providers, working with the King's Fund and NHS Confederation, persuaded the government to add important safeguards that greatly reduce the risk of political interference in the exercise of these powers. These changes mean the secretary of state will only need to be notified about significant reconfiguration proposals – initially, any and all potential reconfigurations were required to be notified. The secretary of state will also have to make a decision within six months.
Health minister Edward Argar MP confirmed in the House of Commons that the secretary of state would consult any relevant providers who are responsible for delivering services, and that this will be reflected in forthcoming guidance and regulations.
Section 47: Review into NHS supply chains
This introduces a duty on the secretary of state to undertake a review of NHS supply chains and to make regulations with a view to assessing and mitigating the risk of the use by the NHS in England of goods or services involving slavery or human trafficking. The regulations can set out steps the NHS should be taking to assess the level of risk associated with individual suppliers, and the basis on which the NHS should exclude them from a tendering process.
NHS trusts (sections 48-60; Schedule 7)
Summary
A number of sections in this chapter repeal redundant legislative sections, including some legislation which was never commenced (for example, provision in the Health and Social Act 2012 for the formal abolition of NHS trusts was never commenced because the foundation trust pipeline was not completed as initially envisaged).
Key sections
Section 48: NHS trusts in England
This section repeals section 179 of the 2012 Act. Section 179 of the 2012 Act abolishes NHS trusts in England. As not all NHS trusts converted to NHS foundation trusts, NHS trusts still exist, and this section has never been commenced.
Section 49: Removal of power to appoint trust funds and trustees
This clause repeals paragraph 10 of Schedule 4 of the NHS Act 2006 which allows the secretary of state to appoint trustees for an NHS trust to hold property on trust. This section removes the secretary of state's powers to appoint such trustees.
Section 50: Sections 48 and 49: consequential amendments; and Schedule 7
Schedule 7 contains amendments that are consequential on sections 48 and 49.
Section 51: Licensing of NHS trusts
Section 51 removes the exemption on NHS trusts to hold a licence from NHS England and requires NHS England to treat any new NHS trusts as if they had applied for a licence – effectively bringing the provider licence in line with the approach for foundation trusts.
Section 52: NHS trusts: wider effect of decisions
This creates a duty to have regard to the 'triple aim' of better health for everyone, better care for all, and efficient use of NHS resources. In addition, consideration will also need to be given to its effects in relation to health inequalities. This applies to ICBs, NHS England and foundation trusts and trusts in England (the 'relevant bodies').
Decisions relating to services provided to a particular individual (for example individual clinical decisions or highly specialist commissioning decisions concerning an individual patient) are exempt from this duty.
Section 53: NHS trusts: duties in relations to climate change
NHS trusts, in the exercise of their functions, must have regard to and contribute towards compliance with section 1 of the Climate Change Act 2008 (UK net zero emissions target), and with section 5 of the Environment Act 2021 (environmental targets), and adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.
Section 54: Oversight and support of NHS trusts
Section 55: Directions to NHS trusts
Section 56: Recommendations about restructuring of NHS trusts
Section 57: Intervention in NHS trusts
Section 59: Appointment of chair of NHS trusts
Sections 54-57 and 59 effectively give NHS England existing powers previously held by the TDA and/or the secretary of state in relation to NHS trusts.
Section 58: NHS trusts: conversion to NHS foundation trusts and dissolution
Section 58 means that an application by an NHS trust to become a foundation trust no longer requires the support of the secretary of state. However, authorisation may only be given for foundation trust status if the secretary of state approves the authorisation and NHS England is satisfied.
This section also gives NHS England the power to dissolve a trust on the approval of the secretary of state and allows NHS England or the secretary of state to make the order for dissolution, if either consider it appropriate to do so. Neither the secretary of state nor NHS England may make a dissolution order until after the completion of a consultation unless as a matter of urgency or following the publication of a final report from a trust special administrator.
Section 60: Financial objectives for NHS trusts
This section amends existing legislation such that NHS England, rather than the secretary of state with the consent of HM Treasury, may set financial objectives for trusts. As is the case now, trusts must achieve these objectives. Furthermore, objectives may apply to trusts generally, or to a particular trust or trusts of a particular description.
NHS foundation trusts (sections 61-68)
Summary
These sections cover the licensing of foundation trusts and the application of capital spending limits, as well as requirements with regards to producing accounts, reports, and forward plans. Mergers, acquisition, separations and dissolution procedures are also included, as well as new duties on tackling climate change and inequalities.
Key sections
Section 61: Licensing of NHS foundation trusts
NHS England can treat existing foundation trusts and new foundation trusts created via merger as having applied and been granted a licence.
Section 62: Capital spending limits for NHS foundation trusts
This gives NHS England the power to set a capital expenditure limit for a foundation trust. Therein:
- NHS England has the power to establish an order to set a capital expenditure limit on a foundation trust in respect of a single financial year
- the order must specify the financial year to which the limit relates (and may be made at any time during or before that financial year)
- NHS England must consult with the foundation trust before the order is made and must publish the order
- the foundation trust has a duty not to exceed the capital expenditure limit set for the relevant financial year.
NHS England must produce guidance on the use of its power to make orders, and NHS England is required to consult with the secretary of state before publication of such guidance. The guidance (now published) sets out information about the circumstances in which NHS England is likely to make an order to set a capital expenditure limit for a foundation trust and how it will establish the limit.
NHS Providers view and activity
Foundation trust boards need to have appropriate power to spend sufficient capital to deliver the right quality of care. As the proposals for this legislation were developed, we negotiated a set of safeguards with the government and NHS England around the use of powers to set foundation trust capital limits. That agreement was for a reserve power, to be used only as a last resort, applying to a single named foundation trust and automatically ceasing at the end of the current financial year. We were also concerned to ensure a transparent process with any order published. We ensured that these were appropriately carried through, and the Act and associated guidance reflect these commitments.
NHS England must have regard to the guidance when deciding whether to issue any orders to limit capital expenditure by foundation trusts, and to keep the guidance under review.
Section 64: NHS foundation trusts: joint exercise of functions
This section makes it possible for an NHS foundation trust to carry out its functions jointly with another organisation. The Act creates a legal mechanism to allow ICBs and NHS providers to form joint committees, of two or more providers, to make joint arrangements and pool funds.
Parallel measures in the Act make it easier for an ICB to commission services collaboratively with other ICBs and other system partners by permitting a wider set of arrangements for joint commissioning, pooling of budgets and delegation of functions.
National context
NHS England will publish in summer 2022 guidance for ICBs, trusts and foundations on the new flexibilities in the Act on delegation, joint working and pooled funds. We have engaged extensively with NHS England on the draft guidance, including holding engagement sessions with trust leaders at different stages of its development (January and May).
Section 65: NHS foundation trusts: mergers, acquisitions and separations
This section removes the requirement that an application to merge a foundation trust with an NHS trust must be supported by the secretary of state. An application to acquire a foundation trust or a trust similarly no longer requires the support of the secretary of state. This section places a duty on NHS England to grant the application if it was satisfied that necessary steps have been taken to prepare for the dissolution and the establishment of the new trust or acquisition and the secretary of state approves the grant of the application.
Section 66: Transfers on dissolution of NHS foundation trusts
The section removes the requirement for the grant of an application made by a foundation trust for dissolution to be based on having no liabilities, as was previously set out in the 2006 Act.
NHS England will also be required once the application for dissolution has been granted, to transfer, or provide for the transfer of, the property and liabilities (including criminal liabilities) to another foundation trust, trust, or the secretary of state. It also imposes a duty on NHS England to include in the order a provision for the transfer of any employees of the dissolved foundation trust.
Section 67: NHS foundation trusts: wider effect of decisions
This reflects and reiterates the statutory triple aim duty.
Section 68: NHS foundation trusts: duties in relation to climate change
This reflects and reiterates the duties pertaining to climate change.
NHS trusts and NHS foundation trusts (sections 69-70; Schedule 8)
Key sections
Section 69: transfer schemes between trusts
This section allows NHS England to make one or more schemes to transfer property, rights and liabilities from a relevant NHS body to another relevant NHS body, such as an NHS trust or foundation trust. The section also allows NHS England to set out what steps need to be taken before an application can be granted and what should be included in the scheme.
Section 70: Trust special administrators; and Schedule 8
This outlines the changes to the process and authorisation for the appointment of trust special administrators, including reporting mechanisms.
Joint working and delegation of functions (sections 71-72; Schedule 9)
Summary
These provisions enable NHS England, ICBs, trusts and foundation trusts to exercise their functions jointly with each other and/or with local authorities. It also enables trusts and foundation trusts to establish joint committees and pooled funds with other trusts, foundation trusts, NHS England and ICBs, and/or local authorities. NHS England may publish guidance for NHS bodies in relation to joint working and delegation arrangements.
Key section
Section 71: Joint working and delegation arrangements
This enables trusts and foundation trusts to establish joint working and delegation arrangements, as well as joint committees and pooled funds with other trusts, foundation trusts, NHS England, ICBs and/or local authorities. In relation to joint working and delegation arrangements, 'any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a body of any function by virtue of this section are enforceable by or against that body (and no other person)'. Terms can be agreed regarding payments, and regarding prohibiting or restricting a body from making delegation arrangements in relation to relevant functions. Where a delegated function is jointly exercised, a joint committee may be established, and a pooled fund created.
Section 72: References to functions: treatment of delegation arrangements etc; and Schedule 9
This inserts a new section 275A into the NHS Act 2006. It is intended to produce a more consistent approach to the way in which functions are referred to in that Act.
National context
NHS England will publish guidance for ICBs, trusts and foundation trusts on the new flexibilities in the Act on delegation, joint working and pooled funds; and on joint appointments in summer 2022.
NHS Providers view and activity
The nature of and arrangements for joint committees have important implications for trust boards. Any joint committee would not be a body corporate, and its members would not be protected in the same way as board members are protected. As decisions would be made under delegation, there would be an absence of non-executive director (NED) challenge because foundation trusts cannot delegate to NEDs. Should anything go wrong liability would lie with the foundation trust that made the delegation.
When joint committees make decisions by a majority it presents risks for foundation trusts that will need to be managed. Joint committees are likely to lack the necessary provisions for challenge and obtaining assurance, so boards will need to keep a close eye on them and monitor whether the joint committee process works for them. It is worth noting that if decisions by a joint committee lead to a service failure, it will be the trust board(s) that provide the service who will be taken to task.
We also note the ambiguous wording within this section relating to rights acquired and liabilities incurred. It seems that this provision relates to the delegating body, but as that body may be working with others to delegate and in doing so, take on functions, we await further clarity. Consideration might also be given as to whether a delegation or a contractual arrangement would be preferable, bearing in mind that rights and liabilities are not shared among the parties to these arrangements.
Collaborative working (sections 73-76)
Summary
These provisions remove the secretary of state's and NHS England's duty to promote autonomy and establishes what guidance NHS England can issue concerning joint appointments. The secretary of state can also issue guidance on the duty imposed on NHS bodies to co-operate. Provision is also made to include the new triple aim duty within licence conditions.
Key sections
Section 73: Repeal of duties to promote autonomy
This removes the secretary of state's and NHS England's duties to promote autonomy. NHS England will continue to function as an arm's length body. The removal of this duty is to allow for the introduction of section 45 (general power to direct NHS England) which gives the secretary of state the ability to direct NHS England in regard to the exercise of its functions.
Section 74: Guidance about joint appointments
This section gives NHS England the ability to issue guidance concerning joint appointments between:
- one or more relevant NHS commissioner and one or more relevant NHS provider
- one or more relevant NHS body and one or more local authority
- one or more relevant NHS body and one or more combined authority.
References here to NHS bodies mean NHS England, ICBs, trusts and foundation trusts. Ahead of publishing or revising any guidance, NHS England will be required to consult with appropriate organisations.
Section 75: Co-operation by NHS bodies etc
This introduces a new power for the secretary of state to make guidance on how the duty imposed on NHS bodies to co-operate with each other is discharged. It imposes a duty on NHS bodies, except for Welsh NHS bodies, to have regard to this guidance.
This section also sets out a duty on NHS bodies and local authorities (including Welsh NHS bodies and Welsh local authorities) to co-operate with one another in order to advance the health and welfare of the people of England and Wales. The secretary of state can publish guidance related to England and imposes a duty on NHS bodies and local authorities in England to have regard to this guidance.
Section 76: Wider effect of decisions: licensing of health care providers
This amends the 2012 Act to specify the purposes for which Monitor (whose functions will be transferred to NHS England) may set or modify the conditions contained in the licence which any provider of health care services for the purposes of the NHS must hold.
Further to the creation of the 'triple aim' duty, licence conditions may be set or modified to ensure that decisions are made with regard to all likely wider effects on the three factors which are included in the new 'duty to have regard to the effect of decisions'.
NHS payment scheme (section 77; Schedule 10)
Summary
Section 77 and Schedule 10 replace the national tariff with the NHS payment scheme and make provisions relating to the new scheme. The scheme will be published by NHS England, which will consult with ICBs and relevant providers across the NHS and independent sector. The scheme will set rules around how commissioners establish prices to pay providers for healthcare services for the purposes of the NHS, or public health services commissioned by an ICB or NHS England, on behalf of the secretary of state. The intention is to give the NHS more flexibility in how prices and rules are set, in order to help support more integrated care at local levels.
Key section
Section 77 and Schedule 10 (paragraph 114D): The NHS payment scheme
Paragraph 114D deals with objections to the NHS payment scheme. The Competition and Markets Authority (CMA) will no longer have a role in reviewing objections. Instead, NHS England will make its own decisions about how to proceed. If it decides to make amendments that are, in its opinion, significant and unfair to make without further consultation, it must consult ICBs and relevant providers again. If it decides not to make amendments, it may publish the NHS payment scheme alongside a notice stating that decision and setting out the reasons for it.
Patient choice and provider selection (sections 78-81; Schedule 11)
Summary
These sections and Schedule 11 revoke existing procurement and competition requirements. They also strengthen the current rules around patient choice by making it mandatory for regulations to contain provisions about how NHS England and ICBs will allow patients to make choices about their care and provide NHS England with new powers to enforce patient choice requirements. NHS England must publish guidance about how it intends to exercise its powers here. The intention is to pave the way for a new NHS provider selection regime that moves away from competitive retendering by default in favour of a more collaborative approach to planning and delivering services. Section 81 requires the secretary of state to make regulations with a view to eradicating the use in the health service that are tainted by slavery and human trafficking.
National context
The provider selection regime is due to be implemented by 1 December 2022. This new regime for arranging clinical health care services in England seeks to promote the best interests of patients, taxpayers and local communities. Under the provider selection regime, NHS England says, 'The regime is intended to make it straightforward for systems to continue with existing service provision where the arrangements are working well and there is no value for the patients, taxpayers, and population in seeking an alternative provider. And, where there is a need to consider making changes to service provision, it will provide a sensible, transparent, and proportionate process for decision-making that includes the option of competitive tendering as a tool decision-makers can use'. A government explainer can be found here.
NHS Providers view and activity
It will be important to ensure the provider selection regime operates transparently and robustly, and benefits all trust types, including mental health and community services, which have historically been subject to repeated retendering. Providers have also flagged the need for a proportionate challenge function to be built into the regime (below the high bar of a judicial review). We are continuing to work with NHS England, DHSC and other provider representative groups to explore how a peer review process might be built into the process to support local resolution if local stakeholders have cause to challenge a decision-making body's decision. You can see NHS Providers' response to the consultation on the regime and the Community Network's response.
Competition (sections 82-85; Schedule 12)
Summary
These sections and Schedule 12 introduce a duty on NHS England to provide assistance to the CMA, as well as removing the CMA's involvement in licensing and powers over trust mergers and removing Monitor's competition functions.
Key sections
Section 82: Duty to provide assistance to the CMA
NHS England will be required to give the CMA regulatory information that the CMA may need to exercise its functions, or which would assist it in carrying out its functions. This includes information held by NHS England relating to patient choice, oversight and support, and recommendations about restructuring.
Section 83: Mergers of providers: removal of CMA powers
This adds an exemption from Part 3 of the Enterprise Act 2002, removing CMA powers over trust mergers. Instead, NHS England will review mergers of NHS providers to ensure they are in the best interests of patients and the taxpayer.
Section 84: Removal of functions relating to competition etc; and Schedule 12
This removes Monitor's competition duties as set out in the 2012 Act.
Section 85: Removal of CMA's involvement in licensing etc
This removes Monitor's ability to refer contested licence conditions and tariff prices to the CMA. Instead, NHS England will make its own decisions on how to operate the licensing regime and the NHS payment scheme.
Miscellaneous (sections 86-91)
Summary
These provisions remove the three-year limit for Special Health Authorities (SpHAs) and includes a number of tidying up provisions related to their accounts and reports. In addition, the definition of 'health' as set out in the NHS Act 2006 is expanded to include mental health, and Local Education and Training Boards (LETBs) are abolished. There is also a new requirement on trusts to involve a patient and their carer when planning to discharge a patient.
Key sections
Section 87: Tidying up etc provisions about accounts of certain NHS bodies
This sets out requirements for SpHAs in relation to their accounts and auditing.
Section 88: Meaning of 'health' in the NHS Act 2006
This section amends the NHS Act 2006 so that 'health' will now include 'mental health'.
Section 89: Repeal of spent powers to make transfer schemes etc
This repeals the powers of the secretary of state in the 2012 Act to make a property transfer scheme or a staff transfer scheme in connection with the establishment or abolition of a body by the 2012 Act, or the modification of the functions of a body or other person by or under that Act.
Section 90: Abolition of Local Education and Training Boards
This section amends the Care Act 2014 to abolish LETBs.
Section 91: Hospital patients with care and support needs: repeals etc
This amends section 74 and removes Schedule 3 of the 2014 Act. Where a trust is responsible for an adult hospital patient and considers that they are likely to require care and support following discharge, the trust must as soon as it is feasible after it begins making any plans relating to the discharge, take any steps it considers appropriate to involve the patient and any carer of the patient.
Repealing Schedule 3 means that the responsible NHS body can no longer charge the relevant local authority via a penalty notice, where a patient's discharge from hospital has been delayed due to a failure of the local authority to arrange for a social care needs assessment.