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The duty of NHS Trusts and local authorities to cooperate
16 September 2009
Were Vince Cable’s concerns that the NHS may be “going against”
the push towards greater partnership with local government
warranted?
Liberal Democrat Treasury Spokesman, Vince Cable, at the Local
Government Association Annual Conference earlier this year,
commented that:
“The work of PCTs and local authorities overlaps so much, we
should be talking about joint working in those cases. I worry that
the NHS will go its own merry way as it so often does. They are
going against that trend.
I have seen examples recently in South West London of PCTs
going for alliances and partnerships that cut across local
government boundaries and make it much more difficult to get the
co-operation that you need”.
We take a look at the key legislation in the cooperation of the
NHS and local authorities and what this means in respect of the
services they provide.
The NHS bodies and Local Authorities Partnership
Arrangements Regulations 2000
The 2000 regulations set out that Primary Care Trusts (PCTs),
NHS Trusts and NHS Foundation Trusts may enter into partnership
arrangements with a variety of local authorities (LAs) in relation
to any NHS and health related functions that the LA may provide.
The LAs that these NHS bodies may enter into partnership
arrangements with are:
- A district council
- A county council
- A county borough council
- A London borough council
- The Common Council of the City of London
- The Council of the Isles of Scilly
This is only the case, however, if the arrangements are likely
to do both of the following:
- Lead to an improvement in the way in which those functions are
exercised
- Fulfil the objectives set out in the health improvement plan
of the PCT in whose area the arrangements are to operate
Any partnership arrangement must be written and must specify
each of the following:
- The agreed aims and outcomes of the arrangement
- The payments to be made by LAs to the NHS bodies (or
vice-versa) and how those payments may vary
- The health-related and NHS functions which are the subject of
the arrangement
- The people and types of service in respect of which the
functions referred to in (c) above may be exercised
- The staff, goods, services or accommodation to be provided by
the partners in connection with the arrangement
- The duration of the arrangement as well as provision for the
review or variation or termination of the arrangement
- The arrangements in place for monitoring the exercise by the
NHS bodies of LAs (as the case may be) of the functions referred to
in (c) above
- In the case of the exercise of certain functions, the
arrangements in place for determining the services where a user may
be charged and for informing users about such charges
The NHS bodies must report to the local authorities - quarterly
and annually - on the implementation of the health-related
functions which are the subject of the arrangements. Accordingly,
this applies in reverse, in the case of NHS functions subject to
such arrangements.
The partners may also enter into arrangements for, or in
connection with, the establishment and maintenance of a fund
(pooled fund arrangements) which is made up of contributions by the
partners. From this, payments may be made towards expenditure
incurred in the exercise of any NHS or health-related functions.
However, it should be noted that a partner which is an NHS Trust
may not enter into pooled fund arrangements with a partner that is
a LA unless, it obtains the consent of each PCT with which it has
an NHS contract for the provision of services for persons in
respect of whom the functions which are the subject of the pooled
fund arrangements may be exercised.
Therefore, whilst the regulations do not place any obligations
on NHS bodies and LAs to work together, they clearly envisage
partnership arrangements to improve the way in which the functions
of these bodies are delivered.
Historically, these arrangements were known as Section 31
Agreements under the Health Act 1999. The provisions of section 31
have since been replaced by section 75 of the National Health
Service Act 2006.
Section 75 of the National Health Service Act
2006
Section 75 goes further, setting out that the Secretary of State
may step in and make provisions for NHS bodies (excluding Special
Health Authorities) to enter into similar ‘prescribed arrangements’
if it will lead to an improvement in the delivery of their
functions.
Essentially, these ‘prescribed arrangements’ are partnering and
associated arrangements, allowing the NHS to undertake
health-related functions on behalf of a LA and vice-versa in
respect of LA functions. The emphasis though, is on working
together to create “an improvement in the way in which those
functions are exercised”.
Section 106 of the Local Government and Public
Involvement in Health Act 2007
This gives the Secretary of State the power to request LAs to
prepare and submit to him a proposed ‘local area agreement’
specifying ‘local improvement targets’. These are targets for
improvement in the economic, social or environmental wellbeing of
the LA’s area. In preparing the draft agreement, the LA is required
to consult all appropriate partner authorities that may be relevant
to the delivery of the targets and must cooperate with them all to
determine the targets to be set in the agreement.
These regulations also impose obligations on the LA’s partner
authorities. The regulations require the partner authorities to
cooperate with the LA in determining the local area targets that
are to be set. They must also have regard to any guidance issued by
the Secretary of State.
NHS bodies are specifically included as ‘partner authorities’
who are therefore required to cooperate with LAs in the preparation
of the local area agreement.
As well as these overriding duties to cooperate, there are often
specific pieces of legislation that set obligations in respect of
areas where the NHS and LAs need to work together.
Section 4 of the Childcare Act 2006
As an example, Section 4 of the Childcare Act 2006 places a duty
on LAs working with their partners in the NHS and Jobcentre Plus to
improve outcomes for all children and to reduce inequalities by
providing integrated early years services. They are required to
work together so that all aspects of early childhood services are
planned together and delivered in an integrated way, maximising
access and benefits to young children and their families. Although
integration does not rely on co-location of services, this is
clearly very helpful.
In conclusion, it is important to recognise the need for all
public sector bodies to act reasonably in their decision making. If
improvement in the delivery of services could be achieved by closer
partnership working between the NHS and a local authority, it may
be held to be unreasonable if a decision is made to not put those
arrangements in place.
So, is Vince Cable right to be concerned that the NHS may “go
its own merry way”? Whilst the legislation may not force the NHS to
work with local authorities to improve services, it does go a long
way towards this. With the weight of the statutory framework behind
it; the power of the Secretary of State to make provision for NHS
and LA arrangements; and with the overriding duty to act reasonably
in its decision making, it would be a brave NHS body that would “go
its own merry way” in the future.
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