The Health and Care Bill: The impact on primary care

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.

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.

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.

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.

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.