1. The Legal Landscape for Clinical
Commissioning Groups
20 July 2011
Presented by: Owen Willcox

2. Outline
 The new NHS Landscape and roles of the key players
 How are clinical commissioning groups established?
 Key commercial and governance issues

3. The New NHS Landscape

4. Timetable of Reforms
Planned date Commitment
October 2011  NHS Commissioning Board established in shadow form as a special health authority
During 2012  Health Education England and the NHS Trust Development Authority are established as special
health authorities, but in shadow form, without full functions
April 2012  The next step in extending the choice of Any Qualified Provider, which will be phased in
gradually
By October 2012  NHS Commissioning Board is established as an independent statutory body, but initially only
carries out limited functions – in particular, establishing and authorising clinical commissioning
groups
October 2012  Monitor starts to take on its new regulatory functions
 HealthWatch England and local HealthWatch are established
1 April 2013  SHAs and PCTs are abolished and the NHS Commissioning Board takes on its full functions
 Health Education England takes over SHAs’ responsibilities for education and training
 The NHS Trust Development Authority takes over SHA’s responsibilities for the foundation trust
pipeline and for the overall governance of NHS trusts
 Public Health England is established
 A full system of clinical commissioning groups is established. But the NHS Commissioning
Board will only authorise groups to take on their responsibilities when they are ready
April 2014  Expectation is that the remaining NHS trusts will be authorised as foundation trusts by April
2014. But if any trust is not ready, it will continue to work towards FT status under new
management arrangements.
April 2016  Monitor’s transitional power of oversight over foundation trusts will be reviewed (except for
newly authorised FTs, where Monitor’s oversight will continue until two years after the
authorisation date if that is later)

5. The NHS Commissioning Board
 Approval, assurance and performance monitoring of
clinical commissioning groups
 Commissions specialist services, military, dentistry,
pharmaceutical, ophthalmic, prisons and secure mental
health
 Contracts with GP providers of primary medical services
 Duty to promote integrated services and research and
innovation
 Promotes NHS Constitution

6. Clinical Commissioning Groups
 Tasked with securing improvement in physical and mental
health of their patients and with the prevention, diagnosis
and treatment of illness
 Commission secondary, specialist and community care
services from NHS, independent sector and social
enterprises
 Duty to promote integrated services
 Design and review care pathways
 Duty to promote research and innovation
 Promote NHS Constitution
 Must have a governing body with decision making powers
that meets in public

7. Monitor
 Protect and promote patients interests by promoting VFM
and quality
 Licenses new providers
 Sets consistent tariffs
 Supports vital service continuity
and integrated services

8. Choice and Competition
 Bill will outlaw any policy to increase or maintain market
share of any sector of provider
 Competition as a means to an end
 Competition on quality not price
 Guidance to be published on how choice and competition
to be applied to particular services
 Fixed tariffs for AQP services
 Best Value for non-tariff services

9. Care Quality Commission
 Regulates quality and safety of care providers
 Approval of care providers
 Fitness to practice
 Safety of premises and equipment
 Infection control, safeguarding + risk management

10. Health Watch
 Health Watch England is a sub-committee of Care Quality
Commission
 Local Health Watch are networks of local corporate bodies
 Remit is to:
 be a voice for NHS patients
 investigate and report on effectiveness of delivery of
services
 provide mechanism through which informed public
opinion influences regulation

11. Local Authorities/Health and Wellbeing Boards
 Local authorities will lead on public health with funding
and support from Public Health England
 Health and Wellbeing Boards will encourage
commissioners to work together in integrated manner and
will lead on local public involvement – CCGs must involve
them before publishing annual plan
 Will develop a joint health and wellbeing strategy
 Board to include local authority members, plus heads of
social care, children's services, public health, CCGs,
Health Watch and NHS Commissioning Board

12. How will CCGs be Established?
 Application to the NHS Commissioning Board by two or
more persons who are providers of primary medical
services
 Proposed area of operation
 Name of accountable officer and other prescribed info
 Draft constitution with proposed name and policies to
avoid conflict of interest.
 Regs will set out criteria Board must consider before
approving

13. Funding Arrangements for CCGs
 Annual funding from NHS Commissioning Board
 CCGs must balance the books over the year (controlling
the behaviour of member practices?)
 Additional incentive payments? No details as yet.

14. Key Commercial and Governance Issues
 Workforce issues
 Existing property and contracts
 Public law duties
 Managing conflicts of interest

15. Workforce Issues
 Will TUPE apply to transfer existing PCT staff?
 Is there a transfer or a ‘service provision change’?
 How will NHS pension membership be addressed?

16. Existing Property and Contracts
 Are we taking on onerous liabilities? Proper due diligence
required
 Could we source premises, equipment and back-office
services more cost-effectively?
 Can we negotiate protections for pre-transfer liabilities?

17. Public Law Duties
 Freedom of Information Act applies?
 CCGs susceptible to judicial review?
 Human Rights Act challenges?
 Equality & Diversity obligations

18. Managing Conflicts of Interest
 CCGs constitution should detail duty to act with integrity
and transparency
 Declaration of Interests
 Appointment of independent non-executives
 Rigorous procurement procedures

19. Concluding Remarks
 The system is complex
 There is a risk that bureaucracy could stifle autonomy and
innovation
 There is much detail to fill in through Regulations

20. Creating Partnerships for Public Services
 Public-Private Partnerships
 PFI & Project Finance Innovative Legal Solutions
 Outsourcing for
Partnerships
 Joint Ventures
in Public Services
 Development & Regeneration
 Charities & Not-for-Profit
 Social Enterprises
 Transaction Management
 Training & Capacity Building
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