Healthcare Features
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The Cabinet at Swindon Council has given its initial backing for the creation of a social enterprise providing all adult health and social care services in its area.
The arrangements would see employees from the local authority and Swindon Primary Care Trust transferred across under TUPE to the new vehicle. This would, if implemented, be the first time such a social enterprise had been set up in England for these services.
The social enterprise is the preferred option of the director of adult social care at Swindon Council and the PCT. However, Swindon’s director will now prepare a full business case examining its feasibility and the various other options available.
The move is part of a continued drive to integrate health and social care services for Swindon.
The Cabinet papers also point out that the NHS Operating Framework 2010/11 requires PCTs to stop directly providing services – “as a result, arrangements for the transfer of NHS staff to a new organisation such as another NHS provider, local authority or social enterprise, need to be in place by 1 April 2011”.
Under the plans, the preferred option for children's services is for relevant PCT staff to be TUPE-transferred to the council, also with effect from 1 April 2011.
The Cabinet has authorised the council’s group director for children to enter into new National Health Services Act 2006 Section 75 Agreements with the PCT for the commissioning of services with a pooled fund and for the provision of services from next April for a three-year period.
This will be “on such terms as the Director of Law and Democratic Services may consider necessary to protect the Council’s interests and those of NHS Commissioners, and subject to completion of due diligence and identification of risk mitigation in relation for finance, TUPE and human resources issues”.
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The Cooperation and Competition Panel (CCP) has issued its first decision on a procurement appeal, finding in a case involving NHS North of Tyne that there was no breach of the relevant principles and rules.
The CCP concluded that the decisions taken by the commissioner of the services – in this case specialist orthodontic services – fell within the range of reasonable decisions that it could have taken.
The findings will be submitted as advice to the Secretary of State for Health, who will decide whether or not to accept the CCP’s findings and will make the final decision. The panel nevertheless made some significant comments about procurement processes and dispute resolution procedures.
The case involved a procurement by NHS North of Tyne, which is a management body for Newcastle Primary Care Trust, North Tyneside Primary Care Trust and Northumberland Care Trust. The exercise was carried out by NHS Procurement North East on its behalf.
One of the bidders, a Dr Hobson, subsequently alleged that there had been breaches of principles 1 and 3 of the Principles and Rules for Cooperation and Competition.
These state that commissioners should commission services from those best placed to meet the needs of patients and populations (Principle 1), and commissioning and procurement should be transparent and non-discriminatory (Principle 3). Commissioners also have an obligation to comply with the PCT Procurement Guide, under Principle 3, Rule 1.
Dr Hobson made a series of allegations, ranging from a lack of transparency at the pre-qualification, invitation to tender and post-award stages to the procurement process to actual or apparent bias of a member of the evaluation panel.
The CCP hears appeals from decisions from commissioners that have progressed through the formal dispute resolution panels of the commissioner – typically the PCT – and the strategic health authority.
The panel said none of Dr Hobson’s allegations were proven sufficiently to show a breach of the principles and rules. In particular it concluded that no members of the evaluation panel were biased and Dr Hobson’s evidence for apparent bias was “slender”.
But the CCP commented on how bad procurement can effectively be challenged via the courts or via the PCT/SHA/CCP route.
It suggested: “To safeguard an effective PCT/SHA/CCP process it is important that where there is a challenge under this route, commissioners make appropriate arrangements to ensure that all options, including re-running the procurement process, remain open.
“Commissioners should consider how this can best be achieved. Options include granting a temporary extension to current service provision, temporarily increasing capacity elsewhere in the system, entering into short-term contracts with the winning bidder, or ensuring that there are appropriate termination mechanisms in the contract with the winning bidder.
“The CCP’s Procurement Guidelines now clarify this point by stating that it is good practice to allow a standstill period so that, where possible, all options remain open in the event that the dispute is upheld.”
The panel also said:
- The Office of Government Commerce’s standardised PQQ indicates it is good practice for questions and answers to be shared with all potential suppliers. In this case there was no formal process for questions to be asked and answers to be shared with all relevant potential providers or to provide a pre-PQQ briefing. The CCP did find that some of the questions and answers were “arguably material”. However, despite the absence of a formal process, potential bidders were not precluded from asking questions and an adequate number of bidders – including Dr Hobson – went through to the next stage.
- It would be good practice to clarify in tender documentation that cross references should be provided. That said, “bidders could be expected to include cross references to relevant information as a matter of common sense”
- It was not usual practice, or helpful for the parties, to be required to submit a joint paper to PCT or SHA dispute resolution panels “as this may result in one of the parties feeling unable to say exactly what it wants to or being influenced by the other, in turn resulting in a process that may be less effective”
- In the interests of transparency and good administration, it is desirable for decisions to be appropriately reasoned.
To read the ruling full, click here.
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More than half of public sector employers are planning changes to employment terms and conditions over the next twelve months, research by law firm Eversheds has revealed.
The survey of 150 public sector bodies – mostly in the local government and healthcare sectors – also found that 90% consider reductions in staffing to be the single greatest challenge in the coming year.
Other findings include that:
- 66% are planning changes to their employment practices
- 56% of employers are currently operating a recruitment freeze
- 45% of employers are proposing a recruitment freeze
- 43% of employers envisage some form of partnership arrangement
- 21% of survey respondents anticipate a rise in outsourcing.
Eversheds partner Mark Hammerton said the survey responses revealed considerable diversity in terms of how changes will be effected.
“Whilst redundancies make the headlines, and for obvious reasons, employment contracts and policies are clearly being scrutinised across the board,” he suggested. “In particular, pay freezes, and even pay reductions, as well as the withdrawal of staff benefits or bonuses were anticipated by respondents.”
He added: “Recruitment is also severely restricted, if not precluded, for many. Just under half of respondents are targeting more robust performance or absence management processes.”
Hammerton warned that HR professionals would need to stay close to forthcoming proposals, ensuring, for example, that redundancy exercises or contractual changes are handled appropriately. Otherwise councils would be at risk of adding to the burgeoning number of tribunal complaints revealed in recent Employment Tribunal statistics, he said.
The Eversheds survey also supported the view that many public sector employers believe trimming staff is unlikely, on its own, to produce the degree of cost-saving needed for reasonable maintenance of service delivery.
Hammerton said shared services was a slowly building trend in recent years but was something the public sector is having to pursue more and more. “There is obvious merit and cost-saving in [partnership arrangements] for many,” he argued. “There are also some relatively easy wins for organisations to work together more efficiently and effectively, for example, by combining administrative and service delivery teams. We are certainly seeing an increasing trend towards this, something which will inevitably continue to rise.”
However, Hammerton warned that such arrangements can bring unique problems for those embarking on them for the first time. “One problem is what legal structure will be adopted; from very informal arrangements, pooled staffing, secondments and pooled budgets, to the creation of a merged or shared service company?”
He added: “The results might possibly demonstrate a natural sector scepticism of the private sector’s ability to deliver genuine transformation in service and cost. A somewhat radical model is being trialled by Suffolk Council, which has announced it is to be a ‘commissioning council’ through which services are administered but not provided directly.
“Many will watch this space with keen interest. Could this prove to be the ultimate in clever, forward thinking or a step too far which might prove of devastating impact to the quality and extent of public services?”
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The government’s healthcare shake-up offers “significant opportunities” for people to be more involved in the health and social care they receive but reforms on such a scale inevitably create significant risks, the Association of Directors of Adult Social Services has said.
In its submission to the government’s consultation, ADASS also warned of the financial and resource implications of the reforms for local authorities.
The association nevertheless said it strongly supported a number of the government’s proposals. These include the focus on an agreed set of outcomes across the whole of the health and social care system, the role given to local councils for health improvement and public health at a community level, and the establishment of statutory health and wellbeing boards (HWBs) to strengthen the local democratic legitimacy of the NHS.
It also backed the prospect of local authorities commissioning – on behalf of GP consortia – a range of services where councils have considerable investment and expertise. The ADASS submission highlighted mental health, learning disability, enablement, long term conditions, continuing health care, carers, drugs and alcohol services as examples.
However, the association – which represents directors of adult social services in local authorities in England – warned that there was a range of issues that would need careful consideration.
ADASS suggested that managing the transition from the existing system to the new one “has major risks associated with a loss of organisational capacity at a time when local government will be subject to significant resource reduction and the NHS has to make productivity gains in the order of £20bn”.
The submission argued that that there was a major need to involve existing and new bodies, local authorities, citizens, local communities and providers in co-designing the changes at national, regional and local levels “to achieve a different system that delivers different outcomes across health and social care rather than reinventing the system we have worked in to date”.
Other issues include:
- The risk of greater fragmentation between health and social care “if the aspiration for integrated commissioning is not mainstreamed, and the potential loss of co-terminosity between existing health and local government boundaries”
- The need for links between HWBs, GP Consortia and the NHS Commissioning Board “to be defined clearly in the development of transition plans and the creation of the new architecture, as well as clarity about management of the whole system and where responsibility lies”
- The role, resources and statutory powers allocated to HealthWatch to “ensure that it can effectively represent the aggregated views of users and patients and hold both HWBs and GP consortia to account”.
ADASS also flagged up the financial and resource implications for councils as a result of the White Paper’s proposals.
Among its key concerns on this front are: the level and nature of public health budgets transferred and staffing transfer arrangements; the costs of health and well-being boards and local HealthWatch; arrangements for joint commissioning and pooled budgets; and the NHS, flexibilities and place-based budgeting.