Watch: ICS governance and the role of NEDs: a practical guide

Non-executive directors (NEDs) will play a key role in ICS governance, as they have done at trust level to ensure NHS boards act in the best interests of patients and the public. A minimum of two NEDs will sit on each of the 42 integrated care boards, though we are seeing early signs of noticeable variation in these numbers, according to ICS constitutions. 

These roles will have a key leadership role, ensuring that the board is well governed and can meet its statutory duties and objectives. Some roles will have a specific focus – such as remuneration, finance and audit, and quality and safety – and other roles will be more generalist. Some ICS NEDs will be allocated to places. 

NEDs of NHS providers will continue to play a key role, in provider collaboratives, on ICBs and in ensuring clinical and managerial expertise remain central to decision-making. They will support their trusts to ensure they are complying with the provisions of the health and care bill and working effectively with other partners within the ICS. Place-based NEDs will play a similar role at place level.

While the health and care bill will stipulate some changes to accountability, given the permissiveness of the legislative framework, there is also an expectation that each system will work to develop its own mechanisms for accountability to each other and to their public. 

NEDs will play an important role in identifying and highlighting gaps in accountability, and in making sure that the core tenet of accountability relates to good health outcomes for the public, not just operational delivery of services.

...Could a local GP be an ICS NED?

Provider NEDs cannot be NEDs of the ICB in that area but will still have a role to play in supporting and engaging with the work of the ICS. 

The eligibility requirements contained in job descriptions for NEDs excludes individuals with ‘an ongoing leadership role (hold positions or offices) at an organisation within the same ICS footprint. You will need to stand down from such a role if appointed to the ICB independent non-executive member role.’

Therefore, in theory, GPs or trustees of voluntary/charitable organisations could apply if they do not hold a leadership role within the ICS footprint. But there must be a triangulation between ability to be a NED and the challenges it would create in terms of potential conflicts of interest, so in practice this is unlikely.

There is, however, a grey area where an individual might be a trust NED or other local leader in a neighbouring ICS footprint, with the ICS commissioning some services across the border for patients who live near the border.

This may depend on the specific role inhabited by the NED – for example, whether they are a chair of the audit or remuneration committee, an independent or general member. NEDs will have a duty to ensure the board’s functions are effectively and efficiently discharged and its financial obligations are met. 

They will have designated areas of responsibilities as agreed with the ICB chair, which may encompass driving progress on wider issues such as sustainability and diversity. Initially, NEDs will work closely with the chair to support the establishment of the system’s new statutory arrangements and to develop relationships with key agents of change within the ICB, at place and beyond to build collaboration, trust and confidence across the ICS structure. 

It is also worth noting that although there is a minimum of two NEDs, many systems are appointing more NED roles.

According to the ICS design framework, the ICB will be a unitary board. Such a model will help ensure adequate challenge, supervision and assessment of risk. However, ICBs will need to effectively manage potential conflicts of interests when awarding contracts.

The ICS design framework mentions that NHS trusts and foundation trusts will continue to have duties in relation to patient and public involvement, including the role of foundation trust governors. NHSEI will be publishing updated guidance on the duties of foundation trust governors as an ‘addendum’ to the Guide for Governors. It is anticipated that this will reflect that councils of governors are required to form a rounded view of the interests of the ‘public at large’, including the whole population of the ICS, in the exercise of their duties. This guidance will go out to public consultation, giving governors the opportunity to share their views.
 

...How will such a small number of NEDs on the new structures carry out due process on governance on behalf of patients and public, and for the board to be accountable?

This is a good question and not one which lends itself to a straightforward answer. Firstly, it is worth noting that the number of NEDs within a given ICS is likely to be more than the statutory minimum of two, which should add weight to the role of NEDs within the ICB.

What happens in a given ICS will depend on culture, behaviours, personalities and leadership styles. Much will also depend on the preferences of the chair, but NEDs can, for example, encourage the chair to seek external support on governance arrangements. The NHS Confederation and our ICS Network will continue to offer support to ICS leaders and NEDs by sharing best practice and facilitating conversations around governance and accountability.

NHSEI has and will continue to offer support in the form of guidance and formal support/resources via regional teams. This may apply in particular to engaging with patients and the public and working with the Care Quality Commission to clarify lines of accountability up to regulators.

As part of their updated planning guidance for 2022/23, NHSEI recently confirmed that the implementation of ICSs will begin from July instead of April this year. We responded to this announcement on behalf of our members.

Technically, this means that CCG boards remain accountable until the revised date for transfer of statutory powers. CCG lay members will need to ensure their local governance arrangements are clear and understood. ICS leaders and CCG boards will have to work closely together to define their local accountability and governance as this will not be uniform: for example, this will be different where the current ICS leader is the CCG accountable officer. 

CCGs may be required to produce a ‘quarter’ version of CCG accounts for Q1 2022/23, which some suggest could be remedied by a 15-month accounting period for CCGs to cover the period, to allow for one process of accounting as opposed to two in quick succession. 

CCGs can expect to face HR difficulties, such as having to extend notice periods and convincing individuals to stay for an additional three months – CCG accountabilities may be difficult to uphold for an extended period as gaps in critical roles emerge and challenges. This could have a knock-effect for governance arrangements as lay members may want to leave pre-July. 

NHSEI will need to provide clarity on how the additional running costs for CCGs will be met to allow delivery of their statutory responsibilities until 30 June, in parallel with the new ICB arrangements that are to be introduced in shadow form. The government and NHSEI should work to quickly provide clarity on these issues.

The ICS design framework states that one partner member must be drawn from NHS trusts and foundation trusts which provide services within the ICS’s area. This is not specific to acute trusts, so mental health trusts can sit on the ICB. There is no legal distinction between a physical and mental health trust.

This is the position at the time of writing but may change if there are successful amendments to the health and care bill, for example mandating mental health representation on the ICB.

National regulators including the CQC and NHSEI are measuring this through the system oversight framework and the CQC’s new assessment framework for systems, a role which is mandated under the health and care bill. This will cover primary care providers within the system. This will be a key challenge, especially for the CQC, which has historically inspected individual providers and must move to assessing whole-patient pathways and assuring ICS’ own quality assurance of the services they commission. These frameworks will have clear accountability mechanisms. 

To give an example, within the system oversight framework, ICSs are segmented according to their support needs; those in the top quartile will operate on the principle of earned autonomy but those in the lower quartiles will be subject to mandated support. CQC ratings are one criteria for segmentation decisions. There may also be a role for peer review here, especially given the challenges posed by measuring collaboration. ICS leaders may be able to provide a more robust assessment of collaboration than regulators. A one-size-fits-all approach will not work given that successful integration will look very different in different systems.

Along with its staff and assets, old CCG liabilities will be legally transferred to ICBs through a ‘transfer scheme’. Further detail on this can be found in NHSEI’s CCG closedown/ICS establishment guidance, available on the FutureNHS platform (login required). Transferred liabilities will include commissioning responsibilities and contracts and legal duties regarding health inequalities, quality, safeguarding, children in care and children and young people with special educational needs and (SEN) or disability. [ ¹ ] 

All NHS board members are required to comply with the Nolan Principles of Public Life and meet the CQC’s fit and proper persons requirements. Local discretion is given for ICB constitutions but these must be agreed with NHSEI. According to the model constitution, constitutions must include clear criteria for the removal of ICB members (except the chair). This must include: ‘If they no longer fulfil the requirements of their role or become ineligible for their role as set out in this constitution, regulations or guidance” and “further local criteria.’ ICSs have taken similar approaches to what further local criteria to include. [ ² ] [ ³ ]

Although representation of public and patient groups is not mandated within the legislation, local Healthwatch organisations will sit within the integrated care partnership. The partnership will be tasked with developing the integrated care strategy which the ICB must take into account when exercising its functions. The ICB will need to demonstrate that public/patient voices are informing their decisions in their reporting to NHSEI, particularly the voices of seldom heard communities. 

NHSEI has produced guidance on working with people and communities and we held a webinar with them on this topic.

ICSs are developing various different models to ensure these groups have strong representation. ICSs are establishing these arrangements based on their local circumstances. For example, they may bring in the local Healthwatch or voluntary, community and social enterprise (VCSE) sector umbrella organisation to the board as a non-voting member, although this is not mandatory. 

Others are looking at setting up a patient and public forum, which reports up to a quality committee or directly up to the ICB to test ideas. West Yorkshire Health and Care Partnership has done a full review of patient involvement to inform the development of an involvement framework.

NHSEI is developing a repository of good examples that will be posted on its website. There is a workspace looking at engagement within ICSs on the FutureNHS platform (login required) and this includes several case studies.

There is currently no specific funding for this. NHSEI should provide guidance and support for systems on how they can fund public involvement.

Guidance from the Department of Health and Social Care on the role of ICPs stipulates that while health and wellbeing boards (HWB) are legislated for at place level – bringing together the NHS, local authorities and wider partners to develop strategies for places and Joint Strategic Needs Assessments (JSNAs) for their populations – ICPs support partnerships and integrated working across places, at system level, specifically looking at broad health and care experiences and outcomes that cannot be solved by one organisation or place alone.

ICPs should complement the ongoing activities of HWBs by promoting integration from the place level to the system level. HWBs will have local and place-based insight that will be incredibly valuable to the ICP when looking at and developing a strategy to address cross-cutting, long-term health and care challenges.

Although ICPs and HWBs will be two separate statutory committees, in areas where the HWB and ICP have the same footprint (in small ICSs), they can have the same membership and hold joint meetings.

In 2019, ICS were expected to respond to the NHS Long Term Plan, and as such, all ICSs should have a localised response to the national strategy for the NHS. In ICSs covering multiple place partnerships, this response will have pulled together insight from the public and the places to create an ICS level strategy. 

JSNAs will continue and should feed into the IPC strategy in bigger systems, but there are differing opinions on JSNAs in areas with only one HWB.

Given that the ICS will have a formal duty to have regard to all the health and wellbeing strategies in its area, ensuring the unique needs of each place are reflected in the ICS strategy is an essential starting point. But building effective relationships from the outset will be key. There needs to be an ongoing, two-way relationship that is flexible and provides assurance to the ICS that place partners are contributing effectively to ICS-wide plans and assurance to HWBs that their concerns are being headed by the ICS.

NHSEI guidance on the development of place-based partnerships states that the ICP must have agreed ways of managing disagreement and maintains a strong focus on organisational and cultural development and ways of working to ensure that trust, transparency and cooperation can be maintained. [ ⁴ ]

The ICB will deliver against the ICP’s strategy and key members of the ICB will sit on the ICP, including the chief executive and chair. However, there are no formal levers that the ICP has over the ICB to mandate this. This is something we support as it will stop the ICP from becoming yet another regulator of the ICB. 

Currently ICSs have provider members sitting on quality assurance committees, chaired by CCG nurses or lay members, with provider members stepping aside when their trust is being reviewed to avoid conflicts of interest. We are working with NHSEI to develop some guidance on this.

The CQC’s single assessment framework covers providers as well as ICSs and local government, establishing lines of accountability. But this is something that is still being hotly debated in discussions around the bill and guidance. We expect this will be addressed in part by the government’s forthcoming white paper on integration, which stipulates a single leader at place responsible for the delivery of a shared plan and outcomes for the place. They will be an individual with a dual role across health and care or an individual lead for a ‘Place Board’.

When a trust leader sits on an ICB they are expected to represent the interests of the system, not their organisation. System working will need to deal with conflicts of interest and competing responsibilities, and it is up to leaders to deal with these conflicts. The (regulated and assured) duty to collaborate extends beyond trust leaders who sit on the ICB, so all trust leaders will need to consider this. We therefore promote investment in organisational develop so that system leadership, not organisation leadership, is embraced.

Under the legislation, NHS England may make recommendations to NHS trusts about mergers and applications to become foundation trusts, which no long need support of the Secretary of State but will require their sign off. NHS trust chairs are to be appointed by NHS England, rather than the Secretary of State.

All trusts providing acute and/or mental health services will be expected to be part of one or more provider collaboratives, for which they will work with partners to develop the specific model and best governance arrangements. All trusts and foundation trusts having a new duty to deliver against the ‘triple aim’ of improving (a) health and wellbeing, (b) the quality of services, and (c) efficiency and sustainable use of resources. Foundation trusts will also be subject to new capital expenditure limits.

This will be a key challenge for system leaders, who will need to ensure that their new structures do not get bogged down with bureaucracy by streamlining governance arrangements and operations. For example, smaller ICSs may pursue joint meetings with HWBs and ICPs where both agendas are discussed, and the same stakeholders are present.

Some measures are set out in the bill to ensure ICBs mitigate against conflicts of interest, for example registers of interest for board members, committee/sub-committee members and employers. ICBs must make arrangements for managing conflicts and potential conflicts of interest so they don’t affect the integrity of the board’s decision-making processes.

NHSEI is working on some further guidance on conflicts of interest on the ICB and ICP, for which we have provided input. This will be published in March as part of an updated functions and governance guide.