What is provider collaboration?
Many of the challenges facing health and social care in England can only be solved by working across organisational boundaries and so by providers working together.
Provider collaboration is not new, but the NHSE requirement for most trusts (acute and mental health) to be part of a collaborative is new. As a result of this increased focus, organisations are jointly setting up new organisational models, and adapting or creating new governance arrangements and leadership structures to enable collaboration.
There is no legal definition of what constitutes a provider collaborative. NHSE's provider collaborative guidance states:
Provider collaboratives are partnership arrangements involving at least two trusts working at scale across multiple places, with a shared purpose and effective decision-making arrangements, to:
- Reduce unwarranted variation and inequality in health outcomes, access to services and experience.
- Improve resilience by, for example, providing mutual aid.
- Ensure that specialisation and consolidation occur where this will provide better outcomes and value.
Some provider collaboratives have been in place for a number of years, but they now form part of ICSs, placed on a statutory footing by the 2022 Act. The 2022 Act does not create any specific obligation to create provider collaboratives in a certain way and there are only limited restrictions to the functions they can undertake. Providers therefore have great flexibility and scope as to their aims and legal and governance arrangements. There is no blueprint for how to 'do' effective collaboration.
The statutory basis for collaboration
Trusts, alongside NHSE and integrated care boards (ICBs), are subject to the new 'triple aim' duty in the National Health Service Act (NHSA), (as amended by the 2022 Act) [1]. This requires these bodies to have regard to 'all likely effects' of their decisions in relation to three areas:
- Health and wellbeing for people, including its effects in relation to inequalities.
- Quality of health services for all individuals, including the effects of inequalities in relation to the benefits that people can obtain from those services.
- The sustainable use of NHS resources.
The 2022 Act also introduces the into the NHSA 'duty to cooperate' [2] on NHS organisations when exercising their functions and in its national guidance NHSE uses the terms cooperate and collaborate synonymously.
The triple aim and duty to cooperate are reinforced within the new provider licence for all trusts in England. NHSE's governance and collaboration guidance further articulates expectations under the provider licence. This guidance sets expectations of provider collaboration in respect of three areas:
- Engaging consistently in shared planning and decision-making.
- Consistently taking collective responsibility with partners for delivery of high quality and sustainable services across the system.
- Consistently taking responsibility for delivery of agreed system improvements and decisions.
The guidance forms the basis of how NHSE will oversee providers' performance regarding collaboration and the governance needed to support it, using the NHS Oversight Framework.
In terms of provider collaboration, while system working is supported in law by the triple aim and duty to cooperate, the 2022 Act does not mandate the establishment of provider collaboratives. However, in its provider collaborative guidance, NHSE sets the expectation that all acute and mental health trusts should be part of at least one provider collaborative, while ambulance and community trusts may work with other providers where it is beneficial for patients and makes sense for those involved and their system(s).
The ICS design framework sets out the expectation that provider collaboratives will agree specific objectives with one or more ICS, to contribute to the delivery of that system's strategic priorities, with the provider collaborative establishing how this contribution will be made.
Why focus on governance?
Governance arrangements should be a vital enabler of effective collaboration, not a barrier to it. Providers investing in collaboration will want to give their partnerships the best chance of succeeding; good governance supports provider collaboratives to deliver their aims.
Governance is the way in which boards of directors lead and direct their organisations to ensure legal duties are met, be they under statute or common law, and that the exercise of their functions is done in an effective, lawful manner.
It is about leadership and direction and the mechanisms and processes used to run an organisation.
Governance arrangements should be proportionate to the risk to the partner organisations of the collaborative's activity and use of resources. So, they may well change as a collaborative’s aims and functions change. For many informal collaborations there is no need for additional governance arrangements at all: existing mechanisms and processes can be used. Where the collaboration's aims involve transfers of funds, people or services, partners will likely prefer more formal collaborative arrangements to ensure risk is managed, and to provide clarity and security for the partners as well as patients.
The governance professionals employed by trusts (such as company/trust secretaries and directors of corporate governance) can support trusts on governance matters when establishing collaborative arrangements. Legal advice is also recommended where formal contractual and/or legally-binding arrangements or changes of organisational form are being considered.
In this guide, we have set out some key principles of good governance as they relate to provider collaboration, but this is no substitute for speaking to the governance professional(s) in your organisation(s).
Governance arrangements for provider collaboration should enable participating organisations to:
- Jointly develop and agree plans for collaboration, that can be jointly reviewed and adapted over time.
- Understand which statutory functions, if any, the collaboration will exercise, and which duties the directors of the partner organisations must meet.
- Exercise appropriate and effective lines of accountability, ensuring adequate assurance is provided to the partner organisations.
- Have confidence that effective and lawful decision-making is in place (including through jointly developing terms of reference, schemes of delegation or other arrangements to establish relevant delegated authority and the scope of decision-making where needed).
- Enable appropriate oversight of decision-making and activity so that risk is managed effectively.
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[1] Sections 13A, 14Z43, 26A and 63A respectively of the NHSA.
[2] Sections 72 of the NHSA.