NHS Providers view (November 2023)
While collaboration between NHS providers is not new, the flexibilities introduced by the 2022 Act (and NHSE's expectation that acute and mental health providers will be part of collaborative arrangements) both reflect and are driving considerable energy behind collaborative working.
Our members tell us that they support the principle of working together at scale, and at place, and are optimistic about the benefits to patients and health and care systems. They are also clear that collaboration won't be a panacea for all of the longstanding issues that NHS providers, and the wider sector, are grappling with.
We hope this resource will help providers to make lawful, deliberate decisions about the type of collaboration(s) that might suit them and give provider boards confidence that their arrangements are sound; allowing them to navigate opportunities, manage risk and monitor performance. Proportionate governance doesn't have to be onerous; it should be viewed as a key enabler that embeds change and creates the right environment for successful collaboration.
This resource also seeks to demonstrate that there is no one-size-fits-all model for provider collaboration. Arrangements should be based on local objectives, relationships, context, and the benefits to be delivered. At the time of writing, many systems are in the process of reviewing their operating models to clarify and confirm the roles, responsibilities and priorities of system partners and associated delivery structures, including provider collaboratives. As system-working further beds in, local context and population need will increasingly influence the ways partners work together to achieve the triple aim of system working. This is likely to be reflected in the structures and arrangements providers and system partners put in place to deliver on these priorities. Flexibility to determine the right governance arrangements for the task remains crucial to support this.
As history dictates, NHS organisations will need to be responsive to a changing political and policy context. Revised NHSE guidance for provider collaboration should be with us in early 2024, and we might see the green light on new responsibilities and functions that may be delegated to providers from ICBs. We are also expecting a general election.
Although the context changes, the principles of good governance, based on decades of learning from corporate missteps, are relatively constant. Providers keen to exploit the benefits of collaboration will find good governance a firm foundation.
NHS Providers resources:
NHS Providers runs a Provider Collaboration programme which aims to support trusts to maximise the potential of provider collaboration. It focuses on sharing practice and peer learning through a range of events and resources for boards.
NHS Providers also runs a peer learning programme to share improvement approaches through provider collaboration aimed at tackling inequalities in outcomes, experience and access, Provider Collaboratives: Improving Equitably.
Various case studies, blogs and briefings on provider collaboration are available on the NHS Providers website.
Browne Jacobson view (November 2023)
The legal framework for collaboration is highly flexible. NHS England has put in place some policy constraints but nevertheless providers have huge freedoms in how they work together. With that freedom comes a responsibility to get the governance right.
The legislative changes that enable collaboration follow the white paper Integration and Innovation: working together to improve health and social care for all (February 2021) which identified the complexity and bureaucracy of existing arrangements. The disparity in delegation powers between different NHS bodies led to complex workaround arrangements in the form of committees in common, often with partners becoming frustrated by the lack of decision-making ability.
The aim of introducing new legislation was to reduce bureaucracy and remove barriers to integration and collaboration. But in many ways collaboration remains as complex as ever. The scale, complexity and number of collaboration arrangements that providers will be involved in makes non-executive director (NED) oversight more challenging than it has ever been. NEDs will have to focus on core responsibilities and be able to step back to see the bigger picture.
Provider collaboratives looking to take on responsibility for the arranging of services in the absence of a formal delegation from integrated care boards (ICBs), face a further challenge of navigating the requirements of the new Provider Selection Regime (PSR) expected to come into force in January 2014. While the PSR should make it easier for provider collaboratives to work with commissioners to change existing contractual arrangements, a new regime always brings with it uncertainty and we understand that there is variation in the understanding of the new arrangements between NHS bodies and local authorities.
While legal support is essential to setting up effective governance within provider collaborations the legal framework should not be viewed as a barrier to overcome but rather an opportunity to further develop relationships for effective decision-making.
Browne Jacobson resources:
Browne Jacobson is at the forefront of supporting the NHS to develop clear and transparent governance systems which meet the legislative framework. Our expert health and care lawyers understand the issues you face and provide effective advice that is helpful, pragmatic and written in plain English.
Browne Jacobson is running a series of events on the procurement reforms as well as offering bespoke training packages for clients on the Provider Selection Regime
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