Read the latest guidance on the establishment and governance of Integrated Care Boards (ICBs) and the continuing progress of the Health and Care Bill through Parliament.

The Health and Care Bill has completed its passage through the House of Lords

The Bill is now subject to the final stages of the legislative process, so amendments proposed by each House are now considered by the other House. The Bill is currently back in the House of Commons for consideration of Lords’ amendments. When the exact wording has been agreed by the Commons and the Lords, the Bill will be ready for Royal Assent, and once this is provided, will become law.

ICB membership

The interim guidance on ICB functions and governance was recently updated and provides further clarity on the governance, composition of the ICB and the roles and responsibilities of members. In particular:

• It is expected that the partner member(s) from NHS trusts/foundation trusts (FTs) will bring the perspective of their sector, but they are specifically encouraged to also engage with any social enterprises that are major providers of health and care services in the area of the ICB. These partner member(s) will often be the chief executive of their organisation.

• It is expected that the partner member(s) nominated by primary medical services providers will bring an understanding of primary care in the area. This is not limited to primary medical services and PCNs, but should also include primary dental, community pharmacy and optometry providers.

• The local authority partner member will often be the chief executive of their organisation or someone in a relevant executive level role. However, it may be an elected member of the local authority where locally this is deemed most appropriate.

• One of the ordinary board members must have “knowledge and experience in connection with services relating to the prevention, diagnosis and treatment of mental illness.” This could be achieved by appointing a partner member (jointly nominated by all trusts/FTs); a separately appointed board member (normally a mental health trust/FT chief executive) or the ICB executive director for mental health.

• As widely reported, there are limitations on the appointment of committee and sub-committee members where those appointments could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector.

Avoiding conflicts of interest when making decisions

ICBs need to ensure that boards and committees are appropriately composed and take into account the different perspectives individuals will bring from their sectors to help inform decision-making. To avoid potential conflicts inherent in the structure of the ICB, you need to establish a clear framework and processes for decision-making.

The updated guidance shares best practice for a number of scenarios:

• Involving a conflicted person in discussions around a particular decision, but not in actually taking the decision (eg. where there is a vote in respect of the decision). The justification and rationale for including a conflicted person in the discussions should be clearly documented. This could be due to their particular knowledge or expertise in respect of the subject-matter, or the particular insights they can offer.

• If a material interest is declared, the ICB will need to consider to what extent this affects the balance of the discussion and decision-making process. Potential conflicts should not affect the integrity of the ICB’s decision-making processes.

• It will be important to distinguish between those individuals who should be involved in formal decision-taking, and those who are attending in an advisory capacity only.

• In the context of the new provider selection regime for awarding contracts for health services, any individual who is associated with an organisation that has a vested interest in the selection process should recuse themselves from the process.

Nominating “ordinary members” to the ICB Board

As part of the proposed legislation to establish statutory ICSs, the Government will set out regulations determining which trusts and which primary medical services providers may participate in the process for nominating at least one ‘ordinary member’ for appointment to the ICB Board.

Trusts will be eligible to nominate the trust partner member(s) of the ICB board if the ICB considers them to be essential to the development and delivery of the 5-year joint forward plan. If a trust does not meet this condition for any ICB, it will become a nominating organisation for the ICB from whose area the trust receives the largest proportion of its ICB income.

All primary medical services contract holders responsible for the provision of essential services to a list of registered patients within core hours in the ICB’s area will be eligible to jointly nominate the primary care partner member(s) of the ICB board.

Any local authorities (LAs) responsible for the provision of social care whose areas coincide with the ICB’s area will be eligible to jointly nominate the local authority ICB board partner ordinary member(s).

The trusts and LAs that are eligible to nominate ICB board partner members must be named as such in the ICB constitution. Eligible general practices should be listed in the ICB’s Governance Handbook (this list will be kept up to date but does not form part of the constitution). This will ensure that trusts, general practices and LAs are identified as nominating organisations in accordance with the relevant legislation and this draft interim guidance; and that all trusts and LAs are appropriately reflected in draft ICB constitutions. Model wording for the nomination process has been included in the updated model constitution for ICBs.

How Capsticks can help

As we continue to monitor the passage of the Health and Care bill through Parliament, we will update you on any major amendments. In addition, we are providing a range of support services for CCGs, NHS trusts and foundation trusts and emerging ICBs as they work towards the new NHS landscape. This includes:

• working with CCG/ICB teams to map the transfer of functions from CCGs to ICBs supporting the close-down of CCGs and advising on the establishment and initial priorities for ICBs
• drafting or reviewing schemes of reservation and delegation
• advising NHS providers on current and future structures for joint working, including group models, committees in common, and joint committees
• preparing relevant documentation for joint commissioning arrangements with local government.

If you’d like to discuss how we can help your delegation plans, please contact Peter Edwards.