Should CCG decision-making functions be delegated? If so, to whom and how? These are the options ?
Going it alone
Each CCG could operate entirely independently. There is no statutory obligation to collaborate still less an obligation to delegate decision-making when your CCG is still the liable entity. However isolationism may mean a lack of the necessary expertise and financial resources.
Ask a friend
CCG1 can ask another CCG to carry out a certain process on its behalf (eg the operation of continuing healthcare functions or consideration of individual funding requests): hands off no involvement full delegation (s14Z3(2)(a) of the National Health Service Act 2006). The pitfalls with this option is that whilst CCG2 does all the work (and may levy a charge) legal liability remains with CCG1. Only the bureaucratic burden is divested. This may be unattractive unless CCG1 is confident that CCG2?s decision-making processes are at least as good as its own.
CCG1 CCG2 and CCG3 could exercise their function ?jointly? (s14Z3(2)(b) of the 2006 Act). However unlike PCT cluster-wide panels CCGs cannot delegate decision-making authority to a joint committee only to their nominated delegate on a joint committee as confirmed by the guidance to paragraph 6.5.1 of the model CCG constitution.
This may make the role of CCG nominated delegate unattractive and if he/she finds themselves the lone dissentient on a joint panel their view and thus the resultant decision of the CCG is vulnerable to challenge and likely to be difficult to defend in any court proceedings.
CCGs can contract with a CSU for the provision of support services. This option divests the administrative burden to the CSU but the CCG remains liable for performance and the final decision and so the CCG needs to retain a mechanism to take the final decision itself. The authorised decision-maker(s) within the CCG need the necessary skills and expertise to do more than simply rubber-stamp the CSU?s recommendation. They would need to review the supporting evidence and make a considered decision that is reasonably resistant to judicial review.
Since CSUs will initially reside within the NHS CB any arrangement between a CCG and a CSU will in reality be an arrangement between the CCG and the NHS CB. The NHS CB is empowered (by section 14Z9) to exercise commissioning powers on behalf of the CCG if (a) the CCG requests it to do so (b) the NHS CB agrees to do so and (c) no regulations are made preventing the NHS CB from doing so.
Preventive regulations may still be made but even if none are made the NHS CB may simply decline the CCG?s request for the CSU to act on principle. After all commissioning was intended to be driven at the local level not from the centre. Liability for the decision still rests with the CCG responsible. Bureaucracy and budgets may be delegated but not liability. In addition taking this option would also need to be revisited in due course when CSUs float away from the NHS in 2016 or earlier.