CCG Management - How to become authorised

In the first of a series on key issues for CCGs, Ross Clark explains the authorisation process.

Clinical commissioning groups (CCGs) looking for guidance on how to become authorised have three main sources: the Health Bill, the Towards Authorisation guidance published in September 2011 and the NHS Operating Framework for 2012/13.

The Health Bill
The Bill is, of course, still passing through parliament and the latest estimate is that it may be March before the committee stage of the Lords concludes and the Bill returns to the Commons for enactment.

A new copy of the Bill (incorporating all of the amendments to date) was released on 22 December and can be downloaded from www.publications.parliament.uk

In its present form, the Bill sets out structure for the authorisation process which can be summarised as follows:

  • Applications are to be made to the NHS Commissioning Board (NCB).
  • Applications may be made by any two or more providers of primary medical services (and this would include sole practitioners as well as practices).
  • The application must be accompanied by a copy of the proposed constitution of the CCG, the name of the proposed accountable officer and 'such other information as the NCB may specify' (this is from Towards Authorisation).
  • Before the NCB determines the application, practices can be added or withdrawn from the list of those wishing to form the CCG and modifications may be made to the proposed constitution.
  • Schedule 2 of the Bill contains further information about the requirements of the proposed constitution (see box 1 below).
  • The NCB must (note 'must' and not 'may') grant an application if it is satisfied as to certain specified matters (see box 2 below).
Box 1: The constitution of a CCG

Requirements for the Constitution of a CCG (as set out in Schedule 2 of the Bill):

Constitution must specify:

  • Name.
  • Members.
  • Area.
  • Arrangements made for the discharge of its functions (including the appointment of audit and remuneration committees).
  • Procedure to be followed in making decisions and for securing transparency about the decisions and how they are made.
  • Provisions for dealing with conflicts of interest.
  • Provisions to secure effective participation by each member.

Constitution may specify provisions for:

  • The appointment of committees and subcommittees.
  • The exercise of any functions on its behalf by any of its members or employees, its governing body or a committee or subcommittee of the consortium.

NB Schedule 2 is not restrictive and the constitution can contain many other provisions if so required by the CCG.

 

Box 2: NCB considerations

Matters the NCB takes into account when considering an application:

  • That the constitution complies with the requirements of Schedule 1A of the Bill.
  • Each of the members of the CCG will be a provider of primary medical services on the date of authorisation.
  • The area specified in the constitution is appropriate.
  • The suitability of the accountable officer.
  • The proposed CCG has made appropriate arrangements to ensure that it will be able to discharge its functions.
  • The CCG has a governing body which satisfies any requirements of the Bill.
  • Such other matters as may be prescribed.

The NCB will then issue its authorisation, at which point the CCG will be formally established and the constitution will take effect. However, the NCB can attach conditions to any authorisation and so can create three tiers of CCG:

  • A CCG that is established but not authorised to undertake commissioning.
  • A CCG that is authorised to undertake commissioning, subject to conditions.
  • A fully authorised CCG.

Towards Authorisation
Towards Authorisation, published by the DH, sets out current thinking on the authorisation process but a further update is planned this spring (once the NCB has been formally established when the Bill is enacted).

The document summarises the three main steps towards obtaining authorisation:

  • A risk assessment of the proposed configuration of the CCG, to be carried out by SHA clusters 'ideally no later than December 2011'.
  • A development period, during which an emerging CCG can gain experience and continue to build up a track record in commissioning, and
  • The formal authorisation process under the Bill.

The document states that the authorisation process will have three aspects to it:

  • Submission of evidence to demonstrate capability across six 'domains'.
  • The NCB being satisfied about the validity of the evidence submitted to it and gathering other information on the CCG.
  • The NCB discussing its findings with the prospective CCG and local stakeholders.

The document stresses that the content of the authorisation process will be built around six domains (six areas which are most likely to act as indicators of success for a CCG) and these are:

  • A strong clinical and multi-professional focus which brings real added value.
  • Meaningful engagement with patients, carers and their communities.
  • Clear and credible plans which continue to deliver the quality, innovation, productivity and prevention (QIPP) challenge within financial resources.
  • Proper constitutional and governance arrangements.
  • Collaborative arrangements for commissioning with other CCGs, local authorities and the NCB as well as the appropriate external commissioning support.
  • Great leaders who individually and collectively can make a real difference.

NHS Operating Framework
The NHS Operating Framework also makes some references to the authorisation process:

  • CCGs must be supported so that the NCB is 'in a strong position' to authorise them from April 2013.
  • Specific guidance on the process for authorisation will be issued in due course (that is, once the Bill has been enacted).
  • Ahead of that, SHA clusters should be working to support emerging CCGs in their authorisation process.
  • In preparing for authorisation, CCGs will need to:
    - Build a track record.
    - Prepare for establishment (including addressing issues arising from the risk assessment by the end of March 2012).
    - Prepare an application in line with the forthcoming guidance.

Summary
Although the Bill continues to be debated, the changes in structure are being implemented as though the Bill had been enacted.

The timeframes in the Towards Authorisation document and the NHS Operating Framework make it clear where CCGs should be in their process to become formally established and there is no doubt that, once the Bill has been enacted, subsidiary regulations will follow.

  • Ross Clark is a partner at GP specialist lawyers Hempsons

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