1.  This protocol sets out the agreed procedures for commissioning NHS healthcare to residents in England who are registered with a GP in Wales and for residents in Wales who are registered with a GP in England. The protocol only applies to those residents living along the England and Wales border covered by the following Local Health Boards (LHB) and Primary Care Trusts (PCT):

Local Health Boards Bordering England	Primary Care Trusts Bordering Wales
Flintshire	Shropshire County
Wrexham	Herefordshire
Powys	West Cheshire
Monmouthshire	Wirral
Denbighshire	Gloucestershire

  For patients resident elsewhere in England or Wales who are registered with a GP on the other side of the border, their healthcare commissioning will remain based on the PCT or LHB where the patient defines their usual place of residence. For the purpose of the protocol the definition to be used is attached.[3] The systems for identifying the responsible commissioner between PCTs within England and between LHBs within Wales remain the same.

DURATION OF PROTOCOL

  2.  The protocol will take immediate effect and will run until 31 March 2009, after which time commissioning responsibility between the two countries will revert to the residency based responsibility, unless the protocol is renewed.

RESPONSIBILITIES

  3.  In compliance with SI 2003 No 150 (W20) LHBs will retain responsibility for their resident population who are registered with a GP in England. However until 31 March 2009, the PCT will be responsible, on the LHB's and HCW's behalf, for the commissioning of healthcare services to those residents.

  4.  In compliance with SI 2003 No 1497, PCTs will retain responsibility for their resident population who are registered with a GP in Wales. However the LHB (and for specialised services, the HCW) will be responsible, on the PCT's behalf, for the commissioning of healthcare services to those residents.

  5.  This protocol does not affect the protocol currently in place for cross-border NHS funded nursing care in care homes in Wales and England, which is based on the care home's location.

CRITERIA

  6.  The following table summarises the commissioning responsibility and responsible body.

Residency	GP Location	Commissioning Responsibility	Legally Responsible Body
Wales	Wales	LHB/HCW	LHB/HCW
England	England	PCT	PCT
Wales	England	PCT	LHB/HCW
England	Wales	LHB/HCW	PCT

  7.  LHBs and HCW, acting on the PCT's behalf for English residents registered with a Welsh GP, will commission on the basis of clinical need and, as a minimum, the Welsh Assembly Government's standards for access to healthcare irrespective of the location of the provider.

  8.  PCTs, acting on the LHB's and HCW's behalf for Welsh residents registered with an English GP, will commission on the basis of clinical need and, as a minimum, on the basis of the Department of Health's standards for access to healthcare irrespective of the location of the provider. However if a patient chooses to be seen and/or treated at a hospital in Wales having been offered an appointment or admission within the Department of Health's standards, they will be excluded from the Healthcare Commission's performance rating assessment.

FINANCIAL CONSEQUENCES

  9.  In carrying out this protocol there will be no financial shortfall on the part of any responsible commissioner to provide healthcare services to the other country's residents. To ensure this financial recording arrangements will be agreed between the Health and Social Care Department of the Welsh Assembly Government and the Department of Health with a view to a timely and appropriate adjustment of finances.

PERFORMANCE MANAGEMENT ARRANGEMENTS

  10.  For Wales this will be based on residency.

  11.  For England this will be based on the commissioner monthly returns.

REACHING AGREEMENT ON THE RESPONSIBLE COMMISSIONER

  12.  Where there is an uncertainty about who is the responsible commissioner, LHBs/HCW and PCTs need to work together to reach agreement speedily and fairly.

  13.  The patient's safety and well-being must be paramount at all times. No treatment must be refused or delayed due to uncertainty or ambiguity as to which commissioner is responsible for funding the healthcare provision. If a Trust has admitted patients to its hospital there should be an automatic assumption that treatment would proceed. Until such time as agreement is reached, the commissioner responsible for the immediate care of the patient should be based on:

—  the last known GP registration, for the named Local Health Boards and Primary Care Trusts in the protocol, and the usual place of residency for others; or

—  if no such information is available at the time, the commissioner should be the one where the patient is currently residing.

  14.  Undertaking the commissioning role in these circumstances would not prejudice the final agreement.

  15.  The process by which local commissioners will reach agreement is as follows: (It is not intended to use this procedure to reach agreement on issues outside this protocol however a similar process may be applied more widely if the Service Level Agreements and Long Term Agreements do not adequately meet need).

	Maximum timescale:
Stage 1.  Local resolution
The LHB or Health Commission Wales and the PCT must try to reach an agreement locally on which is the responsible commissioner using the joint guidance from WAG and DH. All reasonable efforts must be made by officers (escalating to Chief Executives and finally to Chairs if necessary) of the LHB and PCT or Health Commission Wales to reach agreement locally.
Stage 2.  Resolution at Regional/Strategic Health Authority Level	Week 4
(i)  In exceptional circumstances, the LHB/HCW and the PCT Chief Executives may agree that they cannot reach local agreement and so decide to refer onto the relevant Regional Director of the Health and Social Care Department's Regional Office and the SHA. In a case involving HCW the matter should be referred to the Regional Office in whose area the patient is either residing or registered with a GP.
(ii)  The joint submission should provide the following information at Regional referral : —  a background summary of the patient's case; —  confirmation that the patient's care is not at risk; —  who is currently taking responsibility for the patient; —  the reason why the commissioners are in disagreement as to who is responsible for funding the patient's healthcare; and —  what has been done to try and resolve matters.
Discussion will take place between the Regional Office and the SHA to resolve the issue based on the facts and guidance. The decision will be final and binding on both commissioners. A joint letter advising of the decision will be issued to both the commissioners.
Stage 3.  National Level	Week 12
In the extra-ordinary event of an agreement not being reached between the Regional Office and the Strategic Health Authority by week 12 guidance should be sought from the respective central policy departments. Both departments will liaise with one another to agree the policy interpretation for the case and provide joint advice to both the Regional Office and Strategic Health Authority to ensure a resolution is achieved.	Week 14

  1.  For the purpose of the protocol, the arbiter of the patient's residence should be the patient. The principle is that the patients' perception of where they are resident (either currently, or failing that, most recently) is the criterion. If there is any doubt about where a person is usually resident, the person shall be treated as usually resident at the address given by him or her to the person or body providing him or her with the services. Where a person doesn't give such an address, he or she shall be treated as usually resident at the address which he or she most recently gave to the person or body providing the services.

  2.  Where a person's usual address cannot be determined in such ways, the person shall be treated as usually resident in the area in which he or she is physically present. Certain groups of patients may be reluctant to provide an address. It is sufficient for the purpose of establishing financial responsibility that a patient is resident in a location (or postal district) within the LHB/PCT geographical area, without needing a precise address. Where there is any uncertainty, the provider should ask the patient where they usually live. Individuals remain free to give their perception of where they consider themselves resident. Holiday or second homes are not considered as "usual" residences.

  3.  By way of illustration, if patients consider themselves to be resident at an address, which is, for example, a hostel, then this should be accepted. If they are unable to give an address at which they consider themselves resident, then the address at which they were last resident could be used.

  4.  Where a patient is unable to, or incapable of, giving either a current or most recent address and an address cannot be established by other means eg by the next of kin advising of the patient's address, then a patient's district should be taken as being that in which the unit providing the treatment is located.

  5.  Special rules apply in relation to the usual residence of prisoners. The responsible commissioner for the commissioning of psychiatric care for people transferred from prison to hospital under sections 47 or 48 of the Mental Health Act will be on the basis of their GP registration prior to sentencing for LHBs and PCTs named in the Protocol and district of residence for the other commissioners. This also applies to patients subject to court hospital orders under Sections 35-38 of the Act. For prisoners not registered with a GP and for whom a previous address cannot be determined, usual residence should be interpreted as being in the area in which the offence was committed, or if pending a trial, the area where the alleged offence was committed.

(Reference: DH Guidance on Responsible Commissioner issued July 2003)

Department of Health

May 2008