The health and care bill is expected to be in force from 1 July. Across the country, senior appointments are being made and governance structures mapped out, but who is being appointed to the key roles and how easy is it proving to select the right appointees?
As the health and care bill continues its way through parliament, it is expected to be in force from 1 July 2022. This replaces the previously stated date of 1 April 2022, as outlined in the recently published 2022/23 priorities and operational planning guidance from NHS England and NHS Improvement (NHSEI).
A key element of the reforms is the dissolution of clinical commissioning groups (CCGs) and the establishment of a new network of integrated care systems (ICSs). ICSs will take over many of the functions of CCGs (and more) and the healthcare community must work on that basis, despite the lack of legislative certainty.
Across the country, senior appointments are being made, governance structures mapped out, and all involved in healthcare systems are fighting a weekly battle to keep up with the raft of guidance being issued by NHSEI, the Department of Health and Social Care, and others.
In terms of basic structure, an ICS is to be made up of two key bodies: a statutory body named the integrated care board or ICB (previously referred to as the ICS NHS body); together with a joint committee of the ICB and local authorities in the ICB area, the integrated care partnership or ICP (previously referred to as the health and care partnership).
Selecting the right appointees
While the membership of the ICP has been left, in terms of the legislation, for local determination, the membership of the ICB is more defined. A number of appointments must be made in advance of 1 July, so the ICB can operate from that date.
But who is being appointed to the key roles and how easy is it proving to select the right appointees?
In terms of appointments to the ICB, the legislation sets out several expected personnel – the chair, chief executive and director of finance, for example. It also requires a number of ‘partner members.’ Arguably, this is where things start to get interesting from a governance perspective.
Partner members are required from primary care (general practice currently designated), from the relevant local authorities and from local NHS trusts/foundation trusts. Currently, the minimum requirement is for one partner member in each of these areas. However, some systems are considering whether greater numbers are justified, for example to represent both acute and mental health providers, though the intention is to keep to a manageable number of members around the ICB for it to operate effectively. The composition of the ICB as part of the constitution will need approval from NHSEI.
...who would be the right person to sit on the board and input effectively, unconstrained by either organisational or individual conflict of interest
The partner members are included to bring the perspective of the various key interests from across the system. However, when sitting on the ICB, a partner member is not a delegate of its sector or organisation. Rather, they must act in the interests of the ICB and wider system. This requirement is already starting to raise eyebrows in terms of how it could work. And indeed, who would be the right person to sit on the board and input effectively, unconstrained by either organisational or individual conflict of interest (the guidance suggests that these are chief executive level roles).
From a system perspective, there is little to be gained in having an ICB which is constrained in its decision-making as a result of some or, potentially, all partner members being forced to abstain as a result of conflict.
Potential scenarios could include:
- a decision to direct significant financial investment to one trust in preference to another (provider partner issue), for example, from one region to another or to a mental health trust from an acute trust
- a decision to plan service alterations removing, say, a local A&E requiring individuals to travel further to access services, potentially benefitting one local authority population over another.
It is always going to be tempting to suggest that an organisation’s most senior individual is appointed
When developing the ICB constitution, careful thought is needed around how the nomination and selection process will operate, with a view to who may be appropriate to represent the relevant partner sector. It is always going to be tempting to suggest that an organisation’s most senior individual is appointed. However, it will often be the case that this individual will have existing statutory or legal duties to their current organisation, which may give rise to conflict and capacity issues if they act as an individual member of the ICB unitary board.
Taking this into account, partner member candidates should:
- ensure they meet the requirements for skills and experience to fulfil the role and eligibility criteria set out in the ICB constitution
- consider the regulations to supplement the bill, setting out which organisations can take part in the nomination process - which may impact on the chances of selection
- satisfy themselves that the duties, responsibilities and accountabilities of their role within their host organisations alongside their ICB role don’t create a conflict that would prevent them fulfilling either or both roles effectively.
Strategic thinking is therefore required to ensure that the partner members who put themselves forward are suitable to also operate as part of the unitary ICB.
Gemma Badger is senior associate and professional support lawyer at Hill Dickinson LLP.
Robert McGough is head of health commercial, regulatory and real estate at Hill Dickinson LLP.
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