The Health and Care Bill: The impact on primary care

21 JULY 2021

| 2 min read

Whilst the creation of Integrated Care Systems (ICS) seeks to address the “…need for integration and collaboration across the system” [para 38 Health and Care Bill Explanatory Notes] when it comes to the commissioning and provision of health and care services in England, both the role of primary care and impact on primary care providers remains rather opaque.

On the face of it nothing much will change on the practical level if the new Health and Care Bill (the Bill) is introduced.

Yes, commissioning functions will shift from CCGs to ICSs and the necessity for primary care providers to be a member of the CCG drops away but in reality

the types of contract available for use when it comes to commissioning primary care services (i.e. APMS, GMS and PMS contracts) remain the same,
the parties capable of entering into those contracts won’t change, and
(at least under this piece of proposed legislation) the services they provide won’t change.

Thinking more laterally this is hardly a surprise. With the introduction of the Network Contract DES, primary care providers are already very much on the path towards greater integration with the emergence and development of Primary Care Networks (PCNs) at neighbourhood level and the evolution of the service specification that links to the same.

This is not to say we won’t see changes. The Network Contract DES is an annual contract and as such changes it is highly likely that the DES specification for 2022/23 which will place greater obligations on PCNs when it comes to their involvement within their relevant ICS.

It will, therefore, be interesting to see what changes are proposed when the draft specification for next year’s Network Contract DES is released later in the year.

Whilst the changes to the Network Contract DES may prove to have a more direct impact on primary care, the Bill does include provisions that could have some important implications. Key to those are:

Primary Care’s Involvement
The Bill provides for the creation of:
- An Integrated Care Board (ICB) that will be a corporate body that will take on the commissioning functions of the CCGs and will have:
  - a chair
  - a chief executive, and
  - at least three other “ordinary members” of which one must be nominated jointly by providers of primary medical services
- an Integrated Care Partnership (ICP) that will be made up of the ICB and its partner local authorities and develop a strategy to address health, social care and public health needs of its system.
So on the face of it, primary care will be represented by one person sitting on the ICB and there are no details on how the wider primary care sector will influence and indeed input into health and care decisions within their system.

Whilst this has repeatedly been stated as being for the stakeholders in any ICS to decide, given that the Bill provides for the fact that the ICB can create committees and sub committees when it comes to exercising their functions, it would be of little to no surprise if the ICB’s establish a committee akin to the current Primary Care Commissioning Committees who make commissioning decisions affecting Primary Care.
Service provision
Whilst this aligns to the NHS Act in its current format, the draft Bill makes it clear that ICBs will have the ability to enter into contracts for the provision of primary medical services and in doing so:
- such contracts may also include services which are not primary medical services, and
- such contracts may provide for services to be provided outside of the geographical area of the relevant ICS (i.e. it can cross ICS boundaries).
Whilst this in itself may not prove significant in its own right, this could prove the mechanism through which ICBs seek to realise some of its core duties including the duty to promote innovation, education and training, research and integration and furthermore could prove the route through which health issues and/or objectives flagged by the ICP as part of their annual plan are addressed at both neighbourhood and place level.
Premises
The emergence of ICB’s could prove an exceptionally important step towards addressing one of the most fundamental barriers to the modernisation of Primary Care estates, namely the liability that currently falls on Primary Care providers (particularly lease liabilities that arise under long term leases that are a pre requisite for many third party developments). ICB’s will be able to:
- acquire land, merge and deal with land [proposed new clause 14Z46 of the NHS Act 2006],
- enter into development agreements [proposed new Schedule 1B clause 20 of the NHS Act 2006], and
- enter into agreements with any lender under any development agreement [proposed new Schedule 1B clause 20 of the NHS Act 2006].
Could we finally see a situation where the ultimate ownership and risk of practice premises moves away from providers? Time will tell but this is certainly the first step in establishing a long overdue alternative to the way in which providers and commissioners can own, handle and manage practice premises.
Procurement
Championed as one of the fundamental changes, the Bill provides for the power to create a new regime for the procurement of clinical health care services (non-clinical services, such as professional services or consumables will remain subject to the wider procurement rules which are currently contained within the Public Contracts Act 2015).

Currently the Bill identifies that the new procurement regime may make provisions for the purpose of:
- ensuring transparency or fairness in relation to procurement,
- ensuring compliance can be verified, and
- managing conflicts of interest. [Proposed new clause 12ZB of the NHS Act 2006]
Beyond that very little detail is provided in the Bill itself and as such we need to look back at the consultation documents to understand what is likely to be a feature of the new regime. In doing so, there is a clear intention that the regime will apply in circumstances where:
- there is a proposed continuation of existing arrangements,
- there is one suitable provider for new/ substantially changed arrangements, or
- there is considered the need for a competitive tender.
It is only in the last of these three situations where a competitive procurement exercise will be considered necessary.

This could prove exceptionally beneficial to those in primary care particularly those seeking to extend their existing contractual arrangements (for instance those holding finite APMS contracts) as one of the proposed situations where an extension can be awarded is stated to be where…

“The incumbent provider/group of providers is judged to be doing a sufficiently good job (ie delivering against the key criteria in this regime) and the service is not changing, so there is no overall value in seeking another provider.” [s 5.5 (C) Provider Selection Regime Consultation Paper]

ICBs will, however, undoubtedly be cautious (at least initially) about the freedoms this new regime could create given the scrutiny they will face. Indeed, even with the freedoms around continuing existing arrangements and identifying a suitable provider, there will be a need for the ICB to:
- be transparent about their intentions and their justification for adopting the proposed approach, and
- publish their intention to award a contract with a sufficient notice/ stand still period (of between 4 – 6 weeks).
With this being the case, the changes may not necessarily be as drastic as first thought at least in the initial period following the introduction of the new regime.
Transfer Schemes

In a variety of places the Bill is peppered with details of the Transfer Scheme that will be put in place under which property, rights and liabilities will be transferred from NHSE/ CCGs to an Integrated Care Board [that relevant to primary care is contained at clause 17 of the proposed Bill].

This sounds straight forward enough but can be riddled with issues if the schemes are not broad enough to cover all commitments that predecessor organisations (be that CCGs or PCTs) may have made to primary care providers.

This is particularly the case in respect of side letters and/or arrangements that may have been made outside of the traditional APMS, GMS or PMS contracts and/or any LES or DES. A common example would be an agreement providing a commissioning or financial commitment to Primary Care providers connection with new or refurbished practice premises.

A detailed scrutiny of the draft Transfer Schemes will be needed as and when they materialise.

Ultimately there are a lot of unknowns which will need to be addressed either within the Bill as it passes through Parliament or the anticipated guidance that will sit behind the same. Keep an eye on our ICS Hub for developments as and when they happen.

Our content explained

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.

The Health and Care Bill: The impact on primary care

Our content explained

Further reading

Diagnosing opportunities

Ofsted learnings: is one word still enough?

Visitors

Existing clients

Staff