In preparation for the establishment of Integrated Care Boards (ICBs), NHS England and NHS Improvement has published a Readiness to Operate Statement Checklist (“ROS Checklist”) which sets out the due diligence CCGs need to carry out by the end of March 2022.

The ROS Checklist requires CCGs to ensure that essential policies are identified through risk assessment, and to prepare the policies. In vitro fertilisation (IVF) commissioning is one of the suggested policies identified in the Checklist.

Following our recent help with the review of a similar policy, we explain the key issues you need to consider when going through the ROS Checklist, and how our team can fully support you with the due diligence exercise.

A real life example of inconsistent policies: IVF commissioning

Our CCG client was newly established as a result of a merger between several CCGs. We discovered that our client had multiple IVF policies covering different geographical areas within its organisation. This was because the IVF policies had not been aligned following the merger, and so individuals were still being treated in accordance with the predecessor CCGs’ policies. 

In practical terms, this meant that individuals within the same CCG area were having to meet different criteria in order to access IVF, with some criteria being more generous than others. For example, some individuals were able to access IVF up until their 40th birthday, whereas others were not eligible after the age of 35, depending on where their GP was based within the CCG’s area. This approach posed a risk to the CCG as there was no clear rationale for the difference in the eligibility criteria, and was likely to attract adverse publicity that the CCG was operating a “postcode lottery”.

Top tips for completing your risk assessment

The key takeaways from this case example when thinking about the requirements of the ROS Checklist are:

1. If you have undergone a recent merger or a series of historic mergers: Check whether you have multiple policies on the same issue. Similar policies should be harmonised, and any variation in policy will need a rational justification (although this is unlikely). This avoids the risk of decisions being made on an arbitrary and potentially unlawful basis in different localities within the CCG.
2. If an Integrated Care Board will be formed from more than one CCG: you will need to review and harmonise key policies in the same way as above.
3. If you have an IVF or other high-risk policy: Please give particular consideration to reviewing IVF policies because they can potentially pose significant risks. IVF issues tend to generate a lot of public interest as they involve complex consideration of equality issues, and the national approach to IVF commissioning varies significantly across CCGs. Other essential policies will need to be identified through a risk assessment, but based on our experience, the policies at high risk of legal challenge include Individual Funding Request policies and patient choice policies.
4. Make sure you’re compliant: You will need to evidence compliance with the Public Sector Equality Duty and the duty to reduce health inequalities. These issues should be considered when carrying out any policy review.

How Capsticks can help

You will need to start the process of carrying out risk assessments to identify essential polices, and prepare those policies, in readiness for March 2022. We can tailor our support to help you to meet these requirements, including:

• Supporting risk assessments to decide which policies to prioritise for risk assessment. We can help you identify inconsistencies in previous arrangements, out of date references to the law or NICE guidance, as well as non-compliance with equality duties.

• Drafting safe and robust policies, considering the need for public involvement in developing some commissioning policies and the need to comply with equality duties.

• Providing advice and guidance on robust and defensible decision making, taking into account principles of procedural fairness and rationality and reflecting the governance structure of your CCG.

If you would like to find out how we can support you further with the due diligence exercise and policy reviews, please get in touch with Peter Edwards, Fiona Easton-Lawrence or Serena Patel.