How the delegation of continuing care may develop

NHS Continuing Healthcare is complex. The service is a legally complex area that straddles health and social care and continues to be scrutinised by the Parliamentary and Health Service Ombudsman and the courts. 

‘Continuing healthcare is becoming an increasingly important issue for clinical commissioning groups’

Under the current NHS Continuing Healthcare (responsibilities) directions 2009, the responsibility for ensuring that assessments of healthcare needs are made and eligibility for care determined in a consistent manner across England lies with primary care trusts. 

Continuing healthcare is becoming an increasingly important issue for NHS clinical commissioning groups that will be responsible for care from 1 April. 

The directions will be replaced by standing rules on continuing healthcare for CCGs. These have now been published and they broadly reflect the directions which they will replace in April.

At the time of the Transforming Community Services programme, when primary care trusts split their commissioner and provider functions, we were asked to advise whether PCTs could delegate their continuing care duties in their entirety to their former provider services. Now we are being asked to advise whether CCGs can delegate their continuing care functions to commissioning support units in April.

What are the powers of delegation? 

As with the directions, the new standing rules for CCGs distinguish between the performance of a CCG’s own statutory duties and functions and the commissioning of services for NHS patients.

Where the standing rules refer to the performance of a CCG function, it is the CCG itself that must meet the requirement directly, eg: to make an eligibility decision. But where the standing rules refer to a service to be provided to NHS patients, the requirement is for the CCG to ensure the service is provided, eg: the carrying out of an assessment of needs.

As expected, the position under the current directions has been carried over into the new standing rules for CCGs in that:

• the making of eligibility decisions (ie deciding whether a full assessment of eligibility should be undertaken, using the completed decision support tool to inform and making a decision on eligibility) are duties and functions of the statutory body (ie: the CCG); 
• whereas all other aspects of care, such as the carrying out of needs assessments, the completion of the DST and the making of recommendations as to eligibility, as well as the provision of services themselves, are NHS services that will be commissioned by the CCG to be provided to NHS patients.

PCTs have wide powers to delegate their functions to other PCTs (including via joint committees) and certain other NHS bodies listed in the functions regulations (though not to independent sector social enterprise organisations or even to NHS foundation trusts).      

Do CCGs have similar powers to delegate and will this include delegation to CSUs?

CCGs are in a very different position from PCTs, in that their powers of delegation of their decision making duties and functions are limited to the delegates listed in their constitutions. These are the CCG’s own governing body, a committee or sub-committee of the CCG, the group’s members and employees of the CCG. Unlike trusts, there is no power to form joint committees with other CCGs with delegated decision-making functions. 

‘Is it not an admission of incompetence for a newly authorised CCG to immediately ask the board to perform its key functions?’

If a CCG needs help from its neighbours with the exercise of its functions it can enter “joint arrangements” to delegate its function to one other group or make arrangements with one or more other CCGs to exercise their functions jointly. 

However, as a CCG cannot delegate decision making authority to another, those arrangements cannot include the delegation of any actual decision making function.

The guidance note to paragraph 6.5.1 of the model CCG constitution clarifies that where there is such a joint arrangement the CCG can only delegate authority to its representative members or employees participating in those joint arrangements to make decisions on behalf of the CCG. It is the individual group representative who has the delegated authority to make the decision rather than the joint arrangement per se.

This presupposes that such joint arrangements of CCGs will always lead to unanimous recommendations or decisions and that there will be no split views. Otherwise to allow a majority view to prevail over a minority would be in effect an ultra vires delegation of authority to that joint arrangement. 

Role of the representative

We suggest that any delegation of authority should specify that if the CCG representative is not in agreement with the majority view at a meeting of a joint arrangement, they should not make a CCG decision but instead refer the matter back to the group’s governing body to decide.

This is because if a CCG representative with delegated authority made a decision that flew in the face of the majority view, and that decision was challenged by a judicial review, it might be difficult for the CCG to defend its delegated “minority” decision. 

However, if the representative brought the decision back to the governing body “un-made” and the CCG reconsidered all the issues at governing body level and then made the decision, having taken into account the majority view of the joint arrangement and the dissenting view of the representative, it is likely to be far easier to defend a reasonable decision of a CCG, even if it upholds the representative’s minority view.

So, although a CCG can have a joint arrangement with other CCGs, eg to agree a shared commissioning policy, a CCG cannot delegate to that joint arrangement the performance of the CCG’s decision making duties and functions.

In respect of delegation to CSUs, CCGs can contract them for commissioning support services, and in addition they can request the NHS Commissioning Board to exercise CCG functions on their behalf. This is set out in section 14Z9 of the 2006 act (as inserted by s26 of the 2012 act) and could include a request that a CSU as hosted by the board exercises the functions of the CCG.  

Section 14Z9 says:

1. The board may, at the request of a clinical commissioning group, exercise on behalf of the group − a) any of its functions under s3 or s3A which are specified in the request; and b) any other functions of the group which are related to the exercise of those functions.
2. Regulations may provide that the power in subsection 1 does not apply in relation to functions of a prescribed description.
3. Arrangements under this section may be on such terms and conditions (including terms as to payment) as may be agreed between the board and the CCG.
4. Arrangements made under this section do not affect the liability of a clinical commissioning group for the exercise of any of its functions. 

Make enquiries now

Our view is that if CCGs want their relevant CSU to perform any of their functions, they should make enquiries of the board now as to whether it will be prepared to exercise such functions through a support unit from April 2013.

Since liability does not transfer, even if any such arrangements are made, CCGs should carefully consider what contractual liability they wish to place on CSUs for the decisions they make. CCGs do not want to be left exposed to poor decision making by CSUs. At the same time, it should be considered whether imposing unduly onerous terms may result in the commissioning board refusing the request altogether. 

In addition, we do not know what regulations may be made under subsection 2, restricting delegation to the board. It is possible that given the purpose of the NHS reforms is to promote and facilitate local commissioning decision making, regulations will be made which stipulate that some CCG functions, eg continuing care functions or individual funding request functions, cannot be delegated to the board or CSUs. After all, CSUs are meant to be commissioning support organisations, not commissioners. 

‘Our view is it is unlikely that the commissioning board will accept delegation to CSUs of continuing care decisions’

Also, in the case of continuing healthcare, the board is the reviewing authority for appeals against most commissioner decisions to refuse care and so it may not want to assume responsibility for making the first tier decisions on behalf of the CCG as well. Further, is it not a bit of an admission of incapacity or incompetence for a newly authorised group to immediately ask the board to perform one of its key functions?

Our view is it is unlikely that the commissioning board will accept delegation to CSUs of continuing care decision making functions and we think CCGs will need to retain these for themselves.

Therefore they will need to retain a continuing care lead or panel with the requisite knowledge and experience who formally makes decisions to undertake full assessments and reviews and to accept or reject multidisciplinary team recommendations as to eligibility.

The person or panel should be more than a “rubber stamp” and capable of exercising authority to challenge recommendations made by any commissioning support organisation and to send cases back for further work where required.

When CSUs are detached from the board 

The current expectation is that for the next 18 months at least CSUs will continue to be hosted by the NHS Commissioning Board. Even if the board does accept CCG requests to perform care decision making functions, it must not be forgotten that CSUs are expected to make the transition from statutory bodies to “free standing enterprises” in that period and, as such, may well become independent, non-NHS bodies. 

The intention is to establish a market in commissioning services from which CCGs will be able to buy in the support services they require. Once that happens they will leave the board and, unless the board retains the capacity to exercise CCG functions on request, it is likely that all group functions will have to go back to CCGs.

An earlier version of this article was published on 10 December 2012.

Julie Jordan is an associate at Mills & Reeve, julie.jordan@mills-reeve.com