The last 12 months has been characterised by considerable uncertainty and upheaval within the NHS. The implementation of the Health and Social Care Bill was delayed while the 'pause and listening' exercise was undertaken, and the Bill has now been revised by the government following the NHS Future Forum Report. Meanwhile, the drive to create efficiency savings through the restructuring and clustering of NHS management and commissioning bodies has continued at speed, and many primary care trusts have drastically reduced headcounts and clustered together. Similar plans are also being undertaken for strategic health authorities ahead of the transition to the NHS Commissioning Board (NHS England) and its regional outposts, and the development of clinical commissioning groups (CCGs). CCGs will be created in shadow form and will begin to take on commissioning functions by April 2013.
The challenges for legal firms specialising in healthcare include the emergence of a new breed of potential client in the form of CCGs, through which clinicians - particularly GPs, but also nurse and hospital clinicians - will have responsibility for commissioning many of the healthcare services for their patient populations. GP practices have historically operated as healthcare providers through private partnerships, sitting technically outside of the 'NHS family', but the move to commissioning and operating as public bodies opens up a whole range of new challenges with which GPs are generally not familiar. From a legal perspective this includes areas such as public consultation, the potential for judicial review of decisions, procurement and competition law, contracting with other healthcare providers, and the development of new relationships with other NHS and wider public sector organisations.
GPs also display considerable concern as to how they can manage conflicts of interest, particularly arising from their role as both commissioners and providers of primary and community-based healthcare.
The Bill also focused attention on issues of choice and competition within the NHS, particularly the new role of Monitor as sector regulator. Amid concerns of NHS 'privatisation', the government's response has aimed to stress that there will be safeguards against competition being an end in itself. This includes preventing the private sector from cherry picking more profitable services, and ensuring that competition is based on quality as opposed to price.
The guidance on the Any Qualified Provider (AQP) regime highlights that this may become a key part of the new commissioning landscape, especially for community and mental health services. The initial phasing-in of certain services to AQP will begin in 2012 with each PCT Cluster selecting three services to take forward onto an AQP panel (before a wider roll out in 2013). As these panels operate on set tariffs, they will not have competition on price. This will present a number of potential risks to existing providers of affected community or mental health services.
The private patient cap, whereby foundation trusts are limited in the amount of private work they can undertake, will be lifted. However, there will be clearly much greater scrutiny, particularly by Monitor as sector regulator, of areas where there may be a risk of the cross-subsidisation of private sector activity by NHS funding.
The timeline within which non-foundation trusts need to achieve foundation status is set to be somewhat relaxed. A significant challenge for Monitor will be how to juggle its two potentially competing roles as foundation trust regulator for a period of up to five years, with its role as sector regulator for health, and ultimately social care.
There is still little clarity on how the foundation trust failure regime will operate, not least because of the complexities involved in determining which services need to be protected for delivery by the failing institution, and which could be readily or easily provided by other providers.
The Bill in its original and amended form still leaves much in the way of clarification to be provided by further regulations and guidance, not least regarding the role of the NHS Commissioning Board in setting the 'commissioning mandate' and providing guidance to commissioners.
There is particular emphasis in the amended Bill on the provision of integrated care, with duties placed on all of the significant players to co-operate and promote the delivery of integrated care. This applies across health and social care commissioners and providers, and also along patient pathways. Local authorities are also acquiring public health functions and a more significant role in approving strategic commissioning plans through health and wellbeing boards.
In terms of new opportunities for legal support, there are already fruitful opportunities emerging in the area of governance both within and across organisations, the creation of integrated care models, and in general support to emerging CCGs. As the NHS Commissioning Board and Monitor develop guidance relating to procurement obligations and the application of competition law to the health and social care sector, there are clearly opportunities for wider support to healthcare providers in understanding the new regulatory regime.