Changes to NHS England’s enforcement guidance

NHS England has updated its enforcement guidance to reflect the Health and Care Act 2022 and current practice. The revised guidance sets out NHSE’s approach to enforcement of integrated care boards (ICBs) and licenced providers in England.

The revised guidance sets out NHSE’s approach to enforcement of all ICBs and providers where NHSE has decided that formal regulatory action is required and explains the regulatory and statutory processes in the event of enforcement action as well as subsequent rights of appeal, where applicable. This includes:

  • when NHSE may decide to take action and what action it can take
  • how NHSE is likely to decided what kind of actions to take using its powers under the Act

Under the Health and Care Act 2022, NHSE has statutory accountability for oversight of both ICBs and NHS providers. NHS Improvement (comprising Monitor and the NHS Trust Development Authority) has been abolished and NHSE has assumed responsibility for carrying out NHS Improvement’s statutory functions, including the regulation of NHS providers, the exercise of provider enforcement powers, enforcement powers over ICBs in relation to compliance with patient choice provisions, and publishing and revising the guidance on the use of those powers. The revised enforcement guidance describes NHSE’s intended approach to using its enforcement powers, including by setting out the use of powers to direct an ICB and the licence enforcement mechanisms that apply to foundation trusts, NHS trusts, licenced independent providers of NHS services, and licenced NHS controlled providers.

Additions to the existing enforcement guidance include enforcement relating to NHS trusts, to reflect the extension of the provider licence to NHS trusts on commencement of relevant provisions under the 2022 Act. Its proposed guidance to cover enforcement in relation to ICBs would include a new approach to ICB enforcement that includes the use of undertakings entered into by ICBs as the first step of enforcement action. The guidance also sets out the options and process for using ICB directions.

Have your say by 9 December 2022

NHSE has a statutory duty to consult on the proposed changes to the enforcement guidance following which the final version of the revised guidance we understand will be published during 2023/24.

You can find the full consultation document and the draft enforcement guidance below:

This should be viewed alongside the consultation on the updated provider licence.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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