Realising the potential of NHS provider joint committees


12th February 2024

It is now just over 18 months since amendments to the NHS Act 2006 introduced the option of forming joint committees between a wide range of NHS bodies. Most notably, new section 65Z5 for the first time allowed Foundation Trusts to make joint decisions with other FTs, NHS Trusts and commissioners. The period since summer 2022 has also seen the increased adoption of common senior leadership teams across trusts.

You might think that the formation of joint committees would complement this increasing convergence between trusts. Joint committees hold out the prospect of streamlined decision-making within a clear statutory framework. Has the potential for NHS provider joint committees been realised? It appears that the uptake of these committees has been low.

What might account for this?

Some groups of providers may be on a journey towards more formalised joint governance. Others may have spent significant time and effort over recent years trying to define “system governance”, either as part of Integrated Care Systems (ICSs) or provider collaboratives, so that they don’t have the appetite for further change in the short term. In some places there are emerging joint leadership teams but existing organisational cultures make formal joint decision-making difficult.

Balancing interests

Often the concern about a joint committee is that the interests of some member organisations will count for more than those of others. At worst, the fear is that a trust could be outvoted on a proposal for substantial change without sufficient regard to the interests of its patients and clinicians. But are joint committees destined to work on the basis of the “tyranny of the majority”?

In the world of company law, there is a range of mechanisms intended to balance the interests of the company as a whole against the interests of minority shareholders. Are there any similar options for joint decision-making within the NHS? It seems that a conversation about what is possible or desirable is needed to unlock the potential of joint working.

For starters, can we achieve consensus that trusts who are concerned they will get raw deal from a system-wide proposal cannot realistically hope to have all their concerns addressed or to have an effective veto? It’s unlikely the NHS will achieve the changes that are needed to continue providing safe, effective and sustainable services using this approach.

It is probably more realistic to capture a full range of views when developing and deciding on proposals. A collaborative approach to joint decision-making could also contain procedural guarantees about considering the interests of those trusts whose patients and staff will be particularly impacted by a proposal and how those impacts might be mitigated. Once again, this doesn’t guarantee that the substance of plans will change but stakeholders at least have assurance that impacts will be identified and evaluated.

Compromise

Do trusts want or need a formal mechanism to ensure that their views are captured and noted, even when these do not align with the prevailing view in the system? One option might be allowing a proportion of the members of a joint committee to decide that an item of business should be reconsidered at the next meeting or some other point in the near future. That would provide a “safety valve” for those instances where it hasn’t been possible to arrive at a consensus view. Any such mechanism would have to be used sparingly if collaboration is to be sustainable, but the fact of its existence may focus minds and promote compromise.

The same approach could support the work of integrated care partnerships, or the agreement of joint forward plans and joint capital resource use plans for ICSs, whether or not those discussions take place through a joint committee.

There are no easy answers. But we know that whatever happens on the political scene in the next few months, the NHS will continue to face real challenges around sustainability. Compromises will have to be made and anything that makes that more likely has to be a good thing.

If you have any questions about NHS provider joint committees, contact health and social care expert, David Hill.

Speak to one of our health and social care lawyers

Arrange a call

Enjoy That? You Might Like These:


articles

8 February -
The road to the Procurement Act 2023 was certainly long and winding and whilst the Procurement Bill received the long-awaited Royal Assent in October 2023, procurement practitioners are not home... Read More

articles

6 February -
What is the new procurement regime for health services in England? On 1st January 2024, the Health Care Services (Provider Selection Regime) Regulations 2023 (the “PSR Regulations”) came into force.... Read More

case-studies

2 February -
What is a sufficiently serious breach? We explain the landmark ruling in Braceurself Limited v NHS England. The primary question for the Court of Appeal in this case was whether,... Read More