Challenging Hospital Closures The NHS in England –Structure

13 Mar 17

Michael Imperato of Watkins & Gunn Solicitors considersthe complex structure of the health service in England. This is particularly important for people seeking to challenge the Health service. Michael has experience in acting for communities challenging hospital closures and for individuals with clinical negligence claims.

In England, the NHS is structured along the lines of an internal market. This means there is a separation between the purchaser and the provider of care, and business or market practices are part of how NHS organisations work. Control was to be devolved from the Secretary of State and NHS managers, to professionals and patients.

Major reforms to the structure of the health service in England were introduced by the Health and Social Care Act 2012, with many provisions under the Act coming into force on 1 April 2013.

The Secretary of State for Health

The Secretary of State has overall responsibility for the work of the Department of Health (DH). He/she has responsibility:

for the business and policies of the department, including financial control
oversight of all NHS delivery and performance

He/she also leads on all aspects of mental health and championing patient safety.

The Department of Health

The DH is responsible for strategic leadership and funding for both health and social care in England. The DH is a ministerial department, supported by a number of agencies and public bodies. It creates national policy and legislation. It (and the Secretary of State) is accountable to Parliament. The work of this department is mostly scrutinised by the House of Commons’ Health Committee.

Public Health England

PHE is an executive agency of the Department of Health, and a distinct delivery organisation with operational autonomy to advise and support government, local authorities and the NHS in a professionally independent manner. Its role is to protect and improve the nation’s health and wellbeing, and reduce health inequalities.

PHE are responsible for:

making the public healthier by encouraging discussions, advising government and supporting action by local government, the NHS and other people and organisations
supporting the public so they can protect and improve their own health
protecting the nation’s health through the national health protection service, and preparing for public health emergencies
sharing our information and expertise with local authorities, industry and the NHS, to help them make improvements in the public’s health
researching, collecting and analyzing data to improve our understanding of health and come up with answers to public health problems
reporting on improvements in the public’s health so everyone can understand the challenge and the next steps
helping local authorities and the NHS to develop the public health system and its specialist workforce

NHS England

NHS England is an independent body, at arm’s length to the government. Its main role is to set the priorities and direction of the NHS and to improve health and care outcomes for people in England. NHS England manages around £100 billion of the overall NHS budget and ensures that organisations are spending the allocated funds effectively.

NHS England is the commissioner for primary care services such as GPs, pharmacists and dentists, including military health services and some specialised services. It also supports local health services that are led by groups of GPs called Clinical Commissioning Groups (CCGs). NHS England allocates funding to the 200+ CCGs, and holds CCGs to account. NHS England also commissions some services itself including specialised services, primary care, offender healthcare and some services for the armed forces. CCGs in turn, commission NHS Trusts, NHS Foundation Trusts and primary care providers.

The NHS England Board consists of a Chair and eight non-executive directors and four voting executive directors.

Four regional teams regions cover healthcare commissioning and delivery in their area and provide professional leadership on finance, nursing, medical, specialised commissioning, patients and information, human resources, organisational development, assurance and delivery. Regional teams work closely with organisations such as CCGs, local authorities, health and wellbeing boards as well as GP practices.

Clinical commissioning groups (CCGs)

CCGs replaced primary care trusts (PCTs) on April 1 2013. CCGs are clinically led statutory NHS bodies responsible for the planning and commissioning of healthcare services for their local area. CCG members include GPs and other clinicians, such as nurses and consultants. They are responsible for about 60% of the NHS budget, commission most secondary care services, and play a part in the commissioning of GP services. The secondary care services commissioned by CCGs are:

planned hospital care
rehabilitative care
urgent and emergency care (including out-of-hours and NHS 111)
most community health services
mental health services and learning disability services

CCGs can commission any service provider that meets NHS standards and costs. These can be NHS hospitals, social enterprises, charities or private sector providers. However, they must be assured of the quality of services they commission, taking into account both National Institute for Health and Care Excellence (NICE) guidelines and the Care Quality Commission’s (CQC) data about service providers.

Both NHS England and CCGs have a duty to involve their patients, carers and the public in decisions about the services they commission. Commissioning is about getting the best possible health outcomes for the local population, by assessing local needs, deciding priorities and strategies, and then buying services on behalf of the population from providers such as hospitals, clinics, community health bodies, etc. It is an ongoing process, and CCGs must constantly respond and adapt to changing local circumstances. CCGs are responsible for the health of their entire population, and are measured by how much they improve outcomes.

CCGs are Membership bodies, with local GP practices as the members; they are led by an elected Governing Body made up of GPs, other clinicians including a nurse and a secondary care consultant, and lay members. CCG’s are independent, and accountable to the Secretary of State for Health through NHS England. They are responsible for the health of populations ranging from under 100,000 to 900,000, although the average population covered by a CCG is about a quarter of a million people.

Health and wellbeing boards

The Health and Social Care Act 2012 establishes health and wellbeing boards as a forum where key leaders from the health and care system work together to improve the health and wellbeing of their local population and reduce health inequalities. Health and wellbeing board members will collaborate to understand their local community’s needs, agree priorities and encourage commissioners to work in a more joined-up way.

They have a statutory duty, with CCGs, to produce a joint strategic needs assessment and a joint health and wellbeing strategy for their local population.

The boards have very limited formal powers. They are constituted as a partnership forum rather than an executive decision-making body.

In most cases, health and wellbeing boards are chaired by a senior local authority elected member. The board must include a representative of each relevant CCG and local Healthwatch, as well as local authority representatives.

In principle, the areas of local CCGs should not normally cross those of local authorities without good reason.

The principal responsibilities of HWBs are:

Producing joint strategic needs assessments (JSNAs): JSNAs are assessments of the current and future health and social care needs of the whole of the local population. HWBs must consult with the local community when producing the JSNA and should take into account a broad range of issues, including demographics, the particular needs of disadvantaged or vulnerable groups and wider social, environmental and economic factors which might impact on health and wellbeing. The JSNA must be taken into account by local authorities, CCGs and NHS England when preparing or revising commissioning plans.
Producing joint health and wellbeing strategies (JHWS): JHWSs are strategies for meeting the local health needs identified in the JSNA. Like JSNAs, JHWSs must be taken into account by local authorities, CCGs and NHS England when preparing or revising commissioning plans.
Oversight of CCG commissioning plans: CCGs must liaise with the HWB when preparing or making significant revisions to their commissioning plans, and provide the HWB with a draft plan. The HWB opinion on the final plan must be published with the commissioning plan. The HWB can refer the plan to NHS England if it thinks the JHWS is not being taken account of properly and must be consulted by NHS England when the annual performance of each CCG is drawn up.

Hospital Trusts

In 2013 the NHS underwent a fundamental restructure system there was a wide range of NHS trusts – such as acute trusts, ambulance trusts, and mental health trusts – that managed NHS hospital care in England, including community care and mental health services.

Today most of these services are provided through NHS foundation trusts and NHS trusts providing ambulance services, emergency care services, or mental health services.

Most hospitals in England are now managed by NHS foundation trusts. First introduced in April 2004, they differ from other existing NHS trusts. They are independent legal entities and have unique governance arrangements. They are also accountable to local people, who can become members and governors.

Each NHS foundation trust has a duty to consult and involve a board of governors – including patients, staff, members of the public, and partner organisations – in the strategic planning of the organisation. They are set free from central government control and are no longer performance-managed by health authorities. As self-standing, self-governing organisations, NHS foundation trusts are free to determine their own future. They have financial freedom and can raise capital from both the public and private sectors within borrowing limits, determined by projected cash flows, and are therefore based on affordability. They can retain financial surpluses to invest in the delivery of new NHS services. Foundation trusts are overseen by NHS Improvement.

Some hospitals in England are managed by acute trusts, some of which have also gained foundation trust status. Acute trusts ensure that hospitals provide high-quality healthcare. They also decide how a hospital will develop so services improve. Some acute trusts are regional or national centres for more specialised care, while others are attached to universities and help train health professionals. Acute trusts can also provide services in the community – for example, through health centres, clinics, or in people’s homes.

Improvement

Founded in 2016, NHS Improvement is an umbrella organisation bringing together Monitor, the NHS Trust Development Authority, Patient Safety, the National Reporting and Learning System, the Advancing Change Team, and the Intensive Support Teams. It oversees and supports NHS foundation trusts, NHS trusts and independent providers delivering NHS-funded care. If necessary, it holds them to account – for example, putting trusts on special measures.

Healthwatch England

Healthwatch England was established as an effective, independent consumer champion for health and social care. It also provides a leadership and support role for the local Healthwatch network.

GPs and the NHS

GP practices are run effectively as small businesses, which are contracted by NHS England. Contracts are held by the practice rather than individual GPs. The funding formula for individual practices is extremely complex.

Regulation – safeguarding people’s interests

Responsibility for regulating particular aspects of care is now shared across a number of different bodies, such as:

CQC
NHS Improvement
individual professional regulatory bodies, such as the General Medical Council, Nursing and Midwifery Council, General Dental Council and the Health and Care Professions Council
other regulatory, audit and inspection bodies – some of which are related to healthcare and some specific to the NHS

This article is for general information purposes only and does not constitute legal or professional advice. For more information contact Watkins & Gunn Solicitors on 02921 154313 or visit to our website www.watkinsandgunn.co.uk