Integrated Care Boards (ICBs) were established on 1 July 2022 taking over the functions of former Clinical Commissioning Groups (CCGs). In our earlier article we considered five key questions occupying the minds of newly appointed members of ICBs shortly after establishment. Here we consider some of what has happened since including current challenges and opportunities.
Integration….and alignment
Big picture integration and collaboration has of course been the focus in recent years, and the aim behind the reforms. Energy has been focussed on mapping new systems and considering the shape of a range of system bodies intended to work closely together to deliver high quality health and care services to populations. However, for ICBs, the picture closer to home is now also pressing. How do ICBs, in some cases constituted of as many as nine former CCGs, integrate to become single coherent statutory bodies capable of efficiently managing large sums of public money? Work to enable this, for example via workforce rationalisation and joint working groups between constituent CCGs, happened in the run-up to 1 July, but it was inevitable that many practical, possibly cultural, issues would not arise until the ICB started operating.
Our experience across a variety of ICBs confirms that some are operating in new form more smoothly than others, but in all cases, post the immediate impact of establishment, the key questions are what do we do the same, and what do we do differently? While many existing working practices introduced to the ICB via predecessor CCGs will continue to function effectively, and variation between place footprints is appropriate in line with the subsidiarity principle, a positively agreed single organisation approach will be necessary in some areas to take full advantage of the benefits of working at scale.
Some tricky issues, flagged prior to establishment are also now being ironed out. For example, as single statutory bodies, ICBs must ensure that commissioning policies are aligned across their places to avoid legal challenge. This will likely already be the case in many areas, but there may also be more contentious policies, for example setting Continuing Healthcare (‘CHC’) fees, or entitlement to IVF treatment, which it was not possible to align pre-establishment but that will need to be resolved through the transitional period.
System relationships and delegation
Other system bodies, such as provider collaboratives and place-based partnerships are maturing post- 1 July and ICBs are starting to look in more detail at how they contract with and delegate to these bodies. Arrangements with local authorities will also need to be reviewed. These may be more straightforward with existing agreements already in place using familiar mechanisms such as section 75 agreements, however in many areas such agreements may be long overdue for refresh.
Delegating to the new bodies will take thought and careful assessment of the risks involved in devolving large sums of money to newly established organisations, formed in a variety of ways, not necessarily as individual legal bodies. The mechanics of doing so will also require consideration. A new mechanism for delegation stemming from the Health and Care Act 2022 (‘the 2022 Act’) is now enshrined within section 65Z5 of the National Health Service Act 2006. This enables an ICB to delegate any of its functions to NHS England (NHSE), another ICB, an NHS trust or foundation trust, local authority, or combined authority, or any of these bodies working jointly. Using section 65Z6 ICBs may also form joint committees with these bodies and pool funds with them.
While the relevant sections of the 2022 Act came into force in July, NHSE only issued its statutory guidance detailing how these powers should be used, together with regulations limiting them in respect of certain statutory functions, at the end of September 2022. While NHSE had already advised that it would recommend ICBs should not make use of these arrangements in this initial transitional year, as plans are made for 2023-24 they will need to be considered. Examples of arrangements given in the guidance include multiple ICBs working jointly to plan ambulance services and ICBs delegating functions, including planning functions to providers or provider collaboratives. Many Place-based Partnerships are also looking carefully at these new powers as a way to further strengthen their governance arrangements.
Regardless of delegation arrangements, the ICB will remain legally accountable for its functions, so assurance arrangements will need to be in place to ensure that they are working appropriately in practice. Further NHSE guidance is also expected providing supporting operational details on how ICB to provider delegations will happen in practice. “Conferral of discretion” arrangements are also detailed in the guidance being alternative or stepping-stone arrangements by which providers may lawfully take on wider population health activities perhaps as a precursor to formal delegation.
Forward planning
The paragraphs above detail just some of the broader picture challenges and opportunities in front of ICBs currently. As 2022 draws to a close ICBs are considering how they move beyond the initial transitional phases following establishment, into operation for their first full year looking to balance finances, tackle questions around the ICB’s role in managing estates across the system, and make inroads in key longer term strategic priority areas such as tackling health inequalities. They must do this while also dealing with short term strategic practicalities such as Covid backlogs, delegating more broadly, and working effectively together as a single organisation.
Equally, there are everyday legal issues and challenges – understanding how responsible commissioner rules apply, the responsibilities for individual complex commissioning that flow from CHC, Mental Health Act s117, personal health budgets and individual funding requests. There may be cases involving safeguarding issues, or in which the ICB needs to take responsibility for Court of Protection proceedings, such as for disputed medical treatment (including covid vaccination) or deprivations of liberty in the community that need court approval. Equally there may be challenges under MCA s21A against Deprivation of Liberty Safeguards (DoLS) authorisations in care homes / hospitals. This last issue in particular will get much more demanding for ICBs, as the forthcoming Liberty Protection Safeguards (LPS) replace DoLS and brings significant new responsibilities for ICBs, as well as a likely much larger volume of litigation.
All of this is challenging. However, the opportunities offered by the ICB’s influence across whole systems should not be forgotten, for example in areas including key services such as Electronic Patient Records systems where at scale procurement offers real benefit, and the potential to look more broadly at system-wide pathways to design solutions offering real value in terms of both the system and patient outcomes.
Overall, this undoubtedly continues to be a challenging time but, handled carefully by Boards working closely together, with other system bodies and wider stakeholders, open to seeing opportunities as well as challenges, and remaining alive to the need to bring everyone within the organisation and wider system with them, it has the potential to be exciting and progressive.
Help and support
We are currently working with a number of ICBs across the country on the key areas of challenge which we see emerging. We will be hosting an event series on issues including all those mentioned above at the start of 2023. In the meantime, if you would like to contact us for more information or to discuss training for your organisation, please do not hesitate to get in touch.
For further information, please contact:
Esther Venning, Hill Dickinson
esther.venning@hilldickinson.com
