This is an official Department of Health briefing on the effect of the proposed clause 118 of the Care Bill

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CLAUSE 118 OF CARE BILL – TRUST SPECIAL ADMINSTRATION

Issue

This briefing explains why the statutory duties of NHS England and clinical commissioning groups to involve and consult patients and the public in planning and making service change are dis-applied under clause 118 of the Care Bill in relation to recommendations made by a Trust Special Administrator (TSA) appointed to an NHS trust or NHS foundation trust (FT).

Background – TSA regime & clause 118

The TSA regime is a distinct statutory process intended to be used under exceptional circumstances.  The regime enables a rapid solution to the intractable problems of a seriously challenged NHS provider where other interventions are likely to have failed to secure adequate quality of care within sustainable resources.  It is time-limited to focus efforts on delivering a sustainable future for the services of a failed trust.

Although the regime is different when compared to traditional attempts to reconfigure NHS services (a process that is led locally by NHS commissioners), a TSA is likely to include service reconfiguration proposals in their plans for making the services of a failing trust sustainable and maintaining service continuity. The main differences of the TSA regime are the timescales for consultation and final decision, and its clearer purpose and statutory basis. The regime, designed for an exceptional situation, has never been about a general approach for the reconfiguration of NHS acute services.

A TSA works independently of Government.  He or she takes charge of an NHS trust or Foundation Trust while the board (and, for FTs, their governors also) are legally suspended, and develops and consults locally on recommendations in a draft report, before making recommendations in a final report to the Secretary of State (for NHS trusts) or Monitor (for FTs) about actions to secure a sustainable future for the services of the trust in administration.

The special administration provisions were first introduced in the Health Act 2009, and provisions in the Health and Social Care Act 2012 amended them in relation to FTs.  Although the arrangements for NHS trusts and FTs are similar, there are differences that reflect the greater autonomy of FTs.

The SofS appoints a TSA to an NHS trust, whilst Monitor appoints a TSA to an FT.  The statutory objective of a TSA appointed to an FT is to ensure the continued provision of essential NHS services, whereas the SofS sets the objective of a TSA at an NHS Trust at the time of appointment.  The TSA of an FT is required under law to seek the support of commissioners for their recommendations, whereas there is no such statutory obligation on the TSA of an NHS trust to seek commissioners’ support.  The final report on an NHS trust is submitted to the SofS who decides what action to take. In the case of an FT, the final report is submitted to Monitor which decides whether to accept the recommendations, with the SofS having power to veto the recommendations if he is not satisfied in accordance with various specified criteria.

Clause 118:

  1. provides that a TSA appointed to a failing NHS trust or FT has power to make recommendations, and Monitor/the SofS the power to accept recommendations, that go wider than the trust under administration, including affecting other NHS trusts and FTs and other providers, where this is “necessary for and consequential on” the action the TSA recommends for resolving the problems of the failing trust.  The provision is not to be applied retrospectively;
  2. would increase the period for the TSA to produce the draft report from 45 to 65 working days, and the period for the TSA to carry out the public consultation from 30 to 40 working days.  The SofS and Monitor’s powers to extend the statutory timetable remain in place;
  3. would require a TSA appointed to an FT to seek, additionally, the support of commissioners of affected FT and NHS Trust services to their recommendations affecting other trusts.  There is already an existing requirement to seek support from the commissioners of the services of the trust in administration.  This is extended so that support from commissioners of affected services provided by other FTs and NHS trusts must be sought.  Commissioner agreement is needed in relation to the TSA’s draft report and before a final report can be prepared following the TSA’s consultation;
  4. would require the SofS to include in the statutory guidance for a TSA appointed to an NHS trust, guidance on seeking commissioner support and involving NHS England in relation to finalising the draft and final report.  It is intended that the guidance will set out the level of support that a TSA appointed to an NHS trust should seek from commissioners – for both those who commission from the trust in administration and from other providers affected by the TSA’s recommendations.  Where the TSA is unable to secure the support of commissioners, it is intended that the guidance will set out the arrangements for him or her to seek support from NHS England for the recommendations;
  5. would clarify that the statutory obligations of the commissioners (NHS England and clinical commissioning groups) to involve and consult patients and the public in planning and making service change do not apply in respect of the TSA process.  There are various statutory requirements in the Health Act 2006 for NHS England, clinical commissioning groups, NHS trusts and FTs to undertake consultation with patients and the public in planning and making service change.  Clause 118 makes it clear that these consultation requirements would be dis-applied to NHS England and clinical commissioning groups in the same way such requirements are already dis-applied for NHS trusts and FTs.   The clause would also clarify that the disapplication provisions apply whether the TSA process relates to a failing FT or an NHS trust.

Discussion

A TSA is under a legal obligation to undertake a consultation on his or her draft report recommendations, currently for 30 working days.  This includes a duty to consult the public to allow anyone with an interest to give their views, thereby providing an important opportunity to validate and help improve the TSA’s draft recommendations.

The TSA regime is a deliberately time-bound process.  One of the principal benefits of the regime is the speed with which it delivers recommendations for clinically and financially sustainable services.  As such, during the TSA’s consultation on their draft recommendations, the obligation to consult the local authority and the power for the local authority to report to the SofS, is expressly dis-applied in relation to proposals contained in a TSA’s draft or final report.  In addition to a TSA’s existing duty to consult the public on their draft recommendations, a TSA must also consult the commissioners of the trust in administration.  Furthermore, the changes being proposed in clause 118 would strengthen the requirements for a TSA to seek commissioner support for their recommendations.  The SofS may also direct a TSA appointed to an NHS trust as to the persons he or she must consult.  In the case of a TSA appointed to a FT, Monitor may similarly direct the TSA as to the persons to be consulted (the SofS also has power to direct Monitor as to whom the regulator should direct the TSA to consult).  Beyond minimum legal requirements, it is expected that a TSA will use his or her judgement in deciding which other people and organisations it is appropriate to consult, applying ordinary public law principles.

The proposal to dis-apply the statutory obligations of commissioners to involve and consult patients and the public when those commissioners are planning and making service change in respect of the TSA process is intended as a clarificatory amendment.

These consultation requirements placed on clinical commissioning groups and NHS England for local reconfigurations of services are inconsistent with the accelerated consultation process of the TSA regime, and could lead to parallel consultations.  Commissioners are generally expected to consult on proposals they have developed for service change for a minimum of 10-12 weeks, with the provision for the local authority to be consulted, and, if it has any concerns about the process or the proposals, report to the SofS.  Local authority involvement is already dis-applied under the law in relation to the TSA’s final or draft report.

In relation to clinical commissioning groups and NHS England, clause 118 would simply follow the existing similar dis-applications in the Act which apply to NHS trusts or FTs, and update and clarify that the existing dis-application in relation to Trusts applies whether the trust in administration is a FT or an NHS trust.  Prior to the 2012 Act, Primary Care Trusts’ statutory obligations to consult were dis-applied in respect of the TSA’s regime.  Clause 118 now achieves a consistency which was overlooked  in the 2012 Act when PCTs were abolished, which omitted to roll forward this dis-application to clinical commissioning groups and NHS England,

DEPARTMENT OF HEALTH

15 NOVEMBER 2013

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