32.  The commissioning and funding of cross-border and cross-boundary services is not a new phenomenon in the UK. As outlined in chapter one, Welsh patients have historically accessed services in England, as English patients have accessed Welsh services. Similarly, beyond primary care services, patients have traditionally accessed secondary and specialist services outside the administrative boundaries of their Local Health Board (or Strategic Health Authority prior to the inception of Local Health Boards).

Commissioning of cross-border services

33.  Current legislation does not define precisely which local NHS body is responsible for commissioning care for people who live on one side of the border but are registered with a GP on the other. As a consequence, an interim protocol between the Department of Health and the Welsh Assembly Government is in place to address this anomaly.[18] This interim agreement states that for patients resident along the English and Welsh border, responsibility for the commissioning of care is determined by GP registration as opposed to residence.

34.  Welsh providers are required to work to the standards and targets set out by the Welsh Assembly Government for all patients whom they see and treat. Patients who are registered in Wales and receive their treatment in Wales are subject to the performance standards applicable to the Welsh NHS, as are patients treated in Wales from any other part of the UK.

35.  English providers are required to work to the standards and targets set out by the Department of Health for patients who are the responsibility of English commissioners. Services for patients registered in Wales but accessed in England are commissioned by Welsh commissioners to meet Welsh Assembly Government performance standards.

36.  In practice, the divergence in performance targets between Wales and England has led to the development of two administrative channels within English hospitals. Whilst English waiting lists are administered in one channel, Welsh waiting lists are administered in another. This leads to an additional administrative burden for hospitals and, in effect, means that Welsh patients seeking elective treatment in an English hospital are subject to different waiting times to their English counterparts seeking treatment in the same hospital. We wish to emphasise however that evidence we have received clarifies that such divergence in performance targets does not impact on the speed with which clinically urgent cases are treated; it is applicable in the case of non-emergency "elective" treatment.

37.  Despite this, concern is clearly expressed in evidence submitted by the public regarding the divergence in standards commissioned by the Welsh Assembly Government and the Department of Health. Many refer to an alleged inequality of service provision due to this divergence. Evidence given to the Committee also suggests that clinicians do not wish to be troubled by issues relating to the operation of diverging performance targets, and are often faced with having to justify differences in service that are beyond their control. The close relationship between the NHS and local government for the delivery of community services adds a further dimension of complexity to the issue, with the commissioning of different services having an impact on the way in which patients are discharged and treated in their communities.

38.  English providers emphasised in evidence that Welsh patients requiring emergency treatment in England will be treated immediately, according to clinical need. In the case of a Welsh patient seeking non-emergency "elective" treatment, we remain unclear how clinicians and administrators decide where a Welsh patient is placed on an English provider's waiting list. A key criterion for success will be to ensure that greater clarity is provided for patients and clinicians regarding the administration of cross-border performance targets of this kind and that decisions about the elective treatment of Welsh and English patients are based on clinical need as opposed to funding. People expect to be treated equally in terms of waiting times and this issue needs to be addressed.

Funding of cross-border services

39.  Over the last 5 years, the NHS in England has seen the introduction of a national payment tariff as part of a programme known as Payment by Result. Under this system, English hospitals are paid according to each individual piece of clinical activity performed. Health care funding in Wales is based on block contracts between Welsh commissioners and relevant providers. Under this system, hospitals are paid based on historic activity and funding levels rather than being paid for individual treatment episodes. Although the Welsh Assembly Government is currently considering a financial flows system akin to the tariff system in England, it is unclear how this will be implemented if adopted.

40.  First Minister Rhodri Morgan AM told us that the introduction of the Payment by Result tariff in England was "not in keeping" with the devolution concordat signed between the Department of Health and the devolved administrations (see paragraph 20).[19] He argued that divergence in funding regimes between England and Wales initially led to tensions between some providers in England (for example the Countess of Chester Hospital and North Bristol NHS Trust) and Welsh commissioners regarding the sums of money paid for services provided to Welsh patients. Due to the historic nature of the block contracts between Welsh commissioners and English providers, it is alleged in evidence that less money is received for the treatment of Welsh patients than for the treatment of English patients. It is also alleged that there is a refusal on the part of the Welsh commissioners and the Welsh Assembly Government to recognise that costs may have increased above inflation over time.

41.  Evidence emerging from our inquiry suggests that the sums of money involved in financial disputes between Wales and England are small relative to the overall health budgets of the NHS in England and Wales. Nonetheless, such disputes cause disproportionate frustration between Welsh commissioners and English providers and have led to avoidable concern amongst patients.

42.  Evidence given to the Committee by the Muscular Dystrophy Campaign and the Association of the British Pharmaceutical Industry urged consideration of UK-level funding and commissioning of treatments for super-rare conditions. The Department of Health stated in its evidence that the English national commissioning group involves, and includes, representatives from the devolved administrations to look specifically at specialisms best provided at a UK level. We urge the Department of Health and the Welsh Assembly Government to clarify the procedures in place for the commissioning and funding of super-rare conditions and to enter dialogue with bodies such as the Muscular Dystrophy Campaign to examine the need for a UK-wide fund.

43.  As a consequence of the tensions over diverging funding regimes in Wales and England, evidence suggests that there is a perception that the English NHS is subsidising the Welsh NHS. Evidence also suggests that Welsh patients perceive that they are being treated as second-class citizens within the National Health Service. Both suggestions should be addressed immediately by the Department of Health, the Welsh Assembly Government and health service providers to ensure that patients receiving treatment on both sides of the Welsh-English border are treated fairly and equally, and that they believe this to be the case. Minister of State for Health Services Ben Bradshaw MP assured the Committee that cross-border financial conflicts are resolvable at a comparatively modest cost and that his Department is working closely with the Welsh Assembly Government to address the issue. A key criterion of success for us will be continued co-operation between both administrations and the achievement of a sustainable resolution as soon as possible.

19   Uncorrected transcript of oral evidence taken before the Welsh Affairs Committee on 12 June 2008 (HC 401-vii, Session 2007-08) Q 539 Back