For the first time this year, we asked trusts about the oversight and regulation of systems. Over the last 12 months the implementation of local system plans, through STPs and ICSs, has been a focus for providers, their local partners, and the national bodies.
There is a prevailing view that greater collaboration at local system level has the potential to transform the delivery and experience of care in line with the vision set out in the Five year forward view (NHS England, 2014). In March 2017 NHS England published Next steps on the five year forward view (NHS England, 2017) which made clear the expectation that STPs evolve as long-term partnerships rather than time limited plans, as well as an ambition for STP footprints to become ICSs.
However, the move to locally-based collaboration has not been accompanied by change to the legislative framework. Responsibility and accountability for the commissioning and the provision of services sits with CCGs and trusts boards and competition between organisations is underpinned legislatively by the Health and Social Care Act 2012. While the current legal frameworks certainly do not prevent partnership working and integration in different forms, this makes for a complex environment for trusts, their partners, and the regulators, to navigate.
The national bodies’ responsibilities and regulatory frameworks also remain aligned to sectors and institutions under existing legislation. Currently, NHS Improvement monitors and assures the performance of NHS trusts and foundation trusts through the SOF, while NHS England carries out this role for CCGs using the CCG Improvement and Assessment Framework.
While the current legal frameworks certainly do not prevent partnership working and integration in different forms, this makes for a complex environment for trusts, their partners, and the regulators, to navigate.
STPs and ICSs have no legal status and derive their decision making powers from the statutory bodies which comprise them. Nevertheless, they are increasingly being used as the vehicle to deliver national policy; initiatives and increasingly funding are now passed down for delivery at STP footprints. For example, this includes the introduction of system control totals with the ability to apply to NHS Improvement and NHS England to adjust organisational control totals as long as the system target is met.
A system-level approach to planning services can ensure that care pathways are designed around the needs and experiences of patients, rather than around traditional organisational boundaries. Oversight at a collective system level is important because the consequence of contributing to a system-level plan may be that some individual organisations are disadvantaged or advantaged; the potential risks and gains need to be shared appropriately across organisations and monitored at a system level.
System-level oversight should also provide a mechanism through which to manage the impact of any performance issues among individual providers or commissioners on other organisations in the system.
A system-level approach to planning services can ensure that care pathways are designed around the needs and experiences of patients, rather than around traditional organisational boundaries.
The refresh to the planning guidance in 2018-19 (NHS England and NHS Improvement, 2018) offered an initial description of how the regulatory system will start to evolve to align with system collaboration. It set out NHS England and NHS Improvement’s intention to focus on the assurance of system plans, rather than organisation-level plans, for those ICSs judged mature enough to become operational.
It is also the intention that ICSs fully adopting a systems approach will operate under a more autonomous regulatory relationship with NHS England and NHS Improvement, who will exercise their intervention powers alongside the system leadership. For example, the planning guidance refresh described that where there is a case for regulatory intervention in a trust or CCG, it is expected that the ICS leadership will play a key role in agreeing the remedial action to be taken.
There is a risk that this new approach, involving both national regulators and local system leaders, will create additional complexity and lead to a lack of clarity – for trusts and for the public – about who is responsible for holding providers to account.
Barriers to system collaboration
NHS trusts support the principle of collaboration at the heart of the STP/ICS approach and many trust leaders are spending considerable time developing local system relationships and plans.
However, the results of our survey suggest that there is a lack of clarity about the end state that local systems should be seeking to reach and the implications of local system approaches for the regulatory framework. Only one in five (20%) of respondents said that they feel the national policy direction for the overall system architecture is clear, and 55% said it felt 'fairly' or 'very unclear'. The difference was marked between types of providers, with 16% of acute trusts reporting they felt the direction is clear, compared to 28% of non-acute trusts. The national bodies must provide clarity about the core aims of STPs and ICSs and avoid overloading them, for example, with requests to monitor and deliver new policy aims which may not all be appropriate for a system level footprint.
While the current legal and regulatory frameworks do not prevent collaboration and integration in different forms, they do make for a complex environment for trusts and their partners to navigate. The majority (80%) of respondents to our survey 'agreed' or 'strongly agreed' that current legislation and accountability structures act as a barrier to system collaboration.
"The regulatory frameworks are not keeping pace with the developments taking place on the ground."
We sought to understand trusts’ views on how NHS Improvement and NHS England are supporting system collaboration. There is overwhelming support among trusts for the plans recently set out by the two bodies to work more closely together at regional level and align their approaches nationally.
Respondents overwhelmingly agreed (94%) that NHS Improvement and NHS England need to work more closely together to enable system collaboration. Three quarters (75%) agreed that joint NHS Improvement and NHS England regional posts would help local collaboration. Views were more mixed about the benefits of merging NHS Improvement and NHS England: half of trusts (50%) disagreed with the statement 'Merging NHS Improvement and NHS England would be a distraction that is not necessary to enable system collaboration', whilst only 27% agreed.
Sharing risks and rewards between local system partners provides an important foundation for enabling local systems to align resources with population needs and focus on outcomes for the whole system without creating extra risk for individual organisations. This is particularly important for decisions that are likely to significantly affect some organisations, such as service reconfigurations. Over half of trusts (59%) responding to our survey said they agreed that financial risk pooling is needed to enable system collaboration.
Aligning system oversight and regulation of organisations
As the models and frameworks for local systems evolve, oversight and assurance models will need to respond to ensure that the oversight of systems does not add an additional layer of performance management. Ideally, any additional regulatory requirements at systems level require a commensurate reduction in existing regulation on individual organisations.
In 2017, NHS England published an indicative baseline STP progress assessment, which provided each STP with an overall rating based on performance across nine domains, and signalled a move towards the performance assessment of local health systems. Our survey asked respondents to give their views on how well the STP assessments and ratings captured performance. It asked respondents to rate on a scale of 1-5 how well the STP assessments and ratings captured the performance of local health systems, where 1 represented 'not well' and 5 represented 'very well'. The most common score, selected by 35% of respondents was 3, which was fairly consistent for both acute and non-acute providers. Providers in London were most positive about STP assessments and rating capturing local health system performance (giving an average score of 3.2), where as those in the Midlands and East of England were the least positive (average score 2.6).
“Whilst the assessment may quantitatively capture performance in local health system it does not accurately map the challenges with in local systems.”
"I think we are still struggling to make sense of the effectiveness of STPs and this makes it difficult to understand the merits of the baseline assessments."
 The nine domains are: Emergency Care; Elective Care; Patient Safety; General Practice; Mental Health; Cancer; Demand Management; Leadership, and Finance.
As the models and frameworks for local systems evolve, oversight and assurance models will need to respond to ensure that the oversight of systems does not add an additional layer of performance management.
Trusts welcome the national bodies’ focus on developing new regulatory models to reflect the practical changes being made locally. Among the respondents, 81% agreed that NHS Improvement and NHS England need to develop new models of oversight to hold systems to account for collective performance.
However, designing and implementing a new model of system oversight is complex and the risks involved need to be managed. Trusts are particularly concerned about the potential for duplication in oversight if they are held to account by the national regulator and also by the local system. In addition to contributing to local system plans, trusts still have institutional responsibilities and are also held to account for these responsibilities; any new oversight at system level must complement existing, institutionally-focused regulation. This is also important because STPs and ICSs do not have the levers to be able to force trusts and other local partners to take action, or intervene if there are problems.
"There is a risk that the ICS approach simply adds an extra layer into the assurance system."
"Due to being in the first wave ICS therefore additional oversight has occurred from both NHS England and NHS Improvement. This has been time consuming."
In addition to contributing to local system plans, trusts still have institutional responsibilities and are also held to account for these responsibilities; any new oversight at system level must complement existing, institutionally-focused regulation.
Nearly two thirds of respondents (61%) said they agreed that STPs/ICSs should have the flexibility to develop local assurance frameworks to hold organisations to account at a local level. However, some trusts shared the view that STPs/ICSs cannot take on responsibility for oversight without a statutory footing. Some respondents highlighted the potential conflict of interest arising from a situation in which STPs/ICSs, which derive their decision making powers from the statutory bodies which comprise them, is holding those organisations to account. There were also concerns that local systems do not yet have the infrastructure or leadership to be able take on this role.
"STPs cannot become the vehicle [for local system oversight] without proper authority and accountability."
"STP is not mature enough yet and doesn’t have the necessary governance or statutory powers. Plus for those trusts that cover a wider footprint than the STP they are based in it would not be appropriate."
That being said, it is the case that more established and developed local partnerships will benefit from negotiating additional freedoms and flexibilities with the national bodies. In these cases, NHS Improvement and NHS England will need to consider which elements of oversight must remain at national level, and which can be transferred to local systems.
Although trusts expressed concerns about a potential increase in regulatory burden, more than half of respondents to our survey agreed that system oversight could be aligned with regulatory requirements at an organisational level.
We asked trusts to reflect on which elements of performance they think can be held to account at a system level, which elicited a very broad range of suggestions. Some respondents thought that NHS constitutional targets - quality measures such as patient experience, length of stay and out of area placements - delayed transfers of care and population health outcomes could be overseen at system level.
While some respondents felt that organisations could be held to account for financial performance at system level, others were clear that they did not think this was appropriate.
"This should be possible, but will require a mature debate, with learning from other regulated sectors."
"My view is that it's one or the other - both would be a nightmare!"