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Working with Foundation Trusts

Jamie Foster of Hempsons discusses the challenges GPs will face as providers and commissioners, working with Foundation Trusts.

The new NHS landscape will change the relationship of GPs with their local Foundation Trusts (FTs). This change will take place on two levels:

·         first, at a commissioning level GPs will become the commissioners of acute care through Clinical Commissioning Groups (CCGs) and

·         secondly, at a provider level GPs are likely to find themselves in increasing competition with FTs, particularly for delivery of community-based services.

 

This article outlines some of the main issues that will arise for GPs in managing these changes.

GPs as commissioners of acute services

GPs involved in leadership or operational roles in CCGs will need to ensure they have the skills necessary to negotiate and manage commissioning contracts with FTs. Primary Care Trusts are currently required to use the Department of Health (DH) standard form contract for commissioning of acute services. This is a lengthy and complex contract but it does give commissioners various performance levers, in particular:

·         the power to suspend the contract and the FT's right to receive payment where the commissioner thinks that a breach by the provider of the contract may create a serious threat to patient safety

·         the power to terminate the contract where the FT is in breach of its terms and in some cases to recover the costs of procuring the services from an alternative provider

·         the power to withhold payments where the FT fails to meet certain performance levels and then fails to rectify this (including in relation to provision of information).

The DH has indicated that it will be carrying out a fundamental review of these contracts during 2012/13. This is likely to result in new standard form contracts being issued by the NHS Commissioning Board. Many of the terms of the current contract are likely to be retained given the powers that they make available to commissioners.

As commissioners of acute services, CCGs will also need to consider some or all of the following:

·         Managing the process of taking funding and services out of acute contracts where appropriate to meet QIPP targets

·         Commissioning more community-based services

·         Commissioning integrated care pathways, perhaps with the local FT as lead contractor with responsibility for multiple sub-contractors

·         Facilitating the centralisation of clinical services run by FTs, including for example pathology services and major trauma services

·         Leading major reconfigurations of acute services, including where appropriate involving mergers and acquisitions of hospitals.

GP leaders will need to build relationships with colleagues from local authorities and other CCGs, as well as FTs, in order to deliver commissioning plans. They will also need to consider whether to buy in the skills needed to negotiate and performance manage FTs from Commissioning Support Services.

GPs as providers of services

The continued QIPP agenda will require CCGs to commission different or new models of care, including:

·         Increased commissioning of services in community-based settings

·         Outcomes-based commissioning through increased use of integrated care pathways

This provides opportunities for GPs to deliver these models of care. But in many cases FTs are likely to be in direct competition with GPs. FTs have already demonstrated their appetite to take on community services to compensate for disinvestment in their acute contracts, as shown by the significant number that acquired community services businesses under the Transforming Community Services programme. They are also well-placed to act as lead contractors in delivering integrated care pathways.

Rather than seek to compete directly with FTs, GPs should consider whether it would be better to collaborate with them. By being a partner with an FT in a joint venture or wider consortium, GPs may well increase their chances of delivering at least some of the services being tendered. Partnering may also allow GPs to participate in tenders that would otherwise be too large in scale or require skills that the GPs do not have.

Joint ventures and consortia can be set up through a contractual agreement with an FT. Or they can be put on a more formal footing by setting up a joint venture company which is co-owned by the parties. The key in these arrangements will be to ensure that the GPs and FT are clear about who will deliver which services, how profits and losses will be shared and how the parties can exit from their joint venture arrangement.

GPs will need to ensure they have appropriate processes and a Code of Conduct in place to manage conflicts of interest between their role as commissioners of services and potential bidders for those services.

Jamie Foster is a partner at Hempsons.

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