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Saturday 31st August 2019

Louise Irvine, Save Lewisham Hospital Campaign

  • Legal basis for public consultation on CCG mergers.

    Across England there are plans for CCG merger. For example in south east London all six CCGs are proposing to merge. This is to carry out the intention of the NHS Long Term Plan which is that there should be one CCG for each "Integrated Care System".

    86 CCGs are planning to apply for merger to take effect from April 2020. To do that they have to get their merger applications to NHS England by September or October at the latest. This process is being rushed through without public consultation.

    Many people are very concerned about this because the new large merged CCGs will cover huge populations of over a million people and be even more remote and less accountable than CCGs are at present.

    With remote centralised CCGs covering very large populations there will be little or no chance in the future of CCGs listening to and acting on the wishes of local people when they are concerned that decisions taken centrally are not in their interests. CCG merger will significantly reduce local NHS democratic accountability.

    We believe the real reason for CCG merger is to confer statutory authority to the ICSs. We believe this is part of Simon Stevens “work around” to reorganise the NHS in a top down fashion while avoiding changes to legislation.

    This is such an important issue that we were surprised there was no requirement for public consultation. We got some legal advice that pointed us to regulations and legislation governing CCG mergers that strongly indicate that public consultation is required.

    I attach the explanation and links to the relevant legislation here.

    Several local campaigns and councils are very interested in using this to challenge their local CCG’s decision not to consult, and to demand public consultation. Public consultation would mean that the applications would not get to NHS England in time for mergers to take effect from April 2020 and they would be put back a year, buying us time for further campaigning on the issue of CCGs and ICSs. By then there might even be a change in government.

    If you think it is relevant to your area then please feel free to use this information and write to your CCG, local Council including the scrutiny committee, and local MPs and demand public consultation on merger plans.

    Legal basis for public consultation on CCG mergers.

    Many CCGs across England are proposing to apply to NHS England to merge. They claim there is no legal requirement to consult the public on this. We believe this is a misinterpretation of the legislation and regulations. The following explains our reasoning. Quotes from legislation are in italics.

    The relevant legislation is contained in the 2006 NHS Act, as amended by the 2012 Health and Social Care Act, which legislated for the creation of CCGs:

    http://www.legislation.gov.uk/ukpga/2006/41

    The relevant regulations are s9(2) and (3) and then Schedule 2(f) and Schedule 3(e) of the National Health Service (Clinical Commissioning Groups) Regulations 2012, which came into force immediately after the commencement of section 25 of the Health and Social Care Act 2012. http://www.legislation.gov.uk/uksi/2012/1631/pdfs/uksi_20121631_en.pdf

    NHS Act 2006

    Section 14G of the NHS Act 2006 says that merger of CCGs entails the dissolution of the pre-existing CCGs and the formation of a new CCG.

      14G Mergers

    (1) Two or more clinical commissioning groups may apply to the Board for—

    (a) those groups to be dissolved, and

    (b) another clinical commissioning group to be established under this section.

    This is followed by section 14H of the Act governing applications to the Board (NHS England) for CCG dissolution. 

    Regulations related to dissolution of CCGs

    Regulations s9(3) and Schedule 3(e) say that if a CCG is applying to the Board for dissolution then the Board has to take into account the extent to which the CCG has sought the views of individuals to whom any relevant health services are being or may be provided, what those views are, and how the CCG has taken them into account. It defines relevant health services as health services pursuant to arrangements made by the CCG in the exercise of its functions. This means the views of the whole population for which the CCG is responsible must be sought, and that would require public consultation.

    In addition, and in case it were to be argued that CCG merger does not entail CCG dissolution, but rather a change to the CCG constitution to vary the area or list of members, then section 14E of the Act (Applications for variation of constitution) and related regulations s9(2) and Schedule 2(f) would apply. This would also require public consultation.

     

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