Memorandum submitted by the NHS Confederation (CBPS 10)

The NHS Confederation is the independent membership body for the full range of organisations that make up today's NHS.  Our membership includes over 95% of NHS organisations - acute trusts, ambulance trusts, mental health trusts, primary care trusts (PCTs), foundation trusts and special and strategic health authorities. The Welsh NHS Confederation is the part of the NHS Confederation which represents all Local Health Boards and NHS Trusts in Wales. We represent NHS organisations on workforce issues through NHS Employers and independent sector members who provide NHS services are also part of the NHS Confederation.

The NHS Confederation welcomes the opportunity to give evidence to the Welsh Affairs Committee inquiry on the provision of cross-border public services for Wales.

This evidence sets out our views on the provision of cross-border issues as they affect health and social care, based on feedback from a cross-section of our member forums and networks.

Executive summary

· The way the health systems are developing is creating difficulties on both sides of the border when they interact with one another.

· Our members believe these difficulties cannot be solved by purchasers or providers and needs clarity from Government.

Overview

Devolution has created four different health systems in the United Kingdom and each shares the same core values although there are differing approaches to the use of mechanisms, for example, competition. The period since devolution has been unique in the history of the NHS as it was essentially the same across the UK before 1999. Since then, England has given priority to market-based reforms and has concentrated on cutting waiting times and offering patients more choice. Wales and Scotland have taken a different, less-market orientated approach. Wales has also introduced free prescriptions and Scotland now offers free personal care.

It is too early to know which system is more successful. Each has its advantages and disadvantages. However, as time passes, these differences will become greater and the health systems will diverge to an even greater extent. This is not necessarily a problem. In fact, communities are different and, in each health system, local decisions planned and executed by managers and clinicians can best meet local needs.

The extent to which cross-border public services are currently provided for and accessed by the Welsh population

The differing legislative frameworks in England and Wales (outlined in appendices one and two) have resulted in a lack of clarity with regards to commissioning arrangements for patients who were living in border counties between England and Wales, and who were registered with a GP on the other side of that border. The NHS Confederation convened a meeting of members from both sides of the border and, as a result, the Department of Health and the Welsh Assembly Government agreed an interim handling strategy to help commissioners and providers manage cross border flows of patients. This is made more difficult by the different emphasis on commissioning in the two countries. PCTs have held many more powers than local health boards (LHBs).

Patients resident in the area of specified Primary Care Trusts but registered with a GP in specified Local Health Board areas in Wales

· LHBs in border areas will be responsible (on behalf of the PCT where the patient is resident) for the commissioning of services for patients who are resident in the named PCT but registered with a GP in the LHB's area. This will also apply to services commissioned by the Health Commission Wales (Specialist Services, HCW) which will be responsible for the operational commissioning specialist services for such patients on behalf of the specified PCTs.

Patients resident in the areas of specified LHBs in Wales but registered with a GP in specified PCT areas in England

· Those specified English commissioners (PCTs) will be responsible (on behalf of the LHB where the patient is resident) for the commissioning of services for patients who are registered with a GP in their area but resident in one of the specified LHB areas in Wales.

Summary: Separation of commissioning role for patients resident in each country

The table below summarises the previous paragraphs. It indicates which commissioner, either the English primary care trust or Welsh local health board, is responsible for the commissioning of services depending on where the patient resides and which area their GP is based.

The PCTs bordering Wales and covered by these issues are Shropshire County, West Cheshire, Herefordshire, Wirral and Gloucestershire. The LHBs are Flintshire, Wrexham, Powys, Monmouthshire and Denbighshire.

The operational responsibility for actually commissioning between PCTs and LHBs by is undertaken by NHS contracts. The financial flows are dealt with centrally and LHBs are expected to meet Welsh targets, and PCTs English targets.

Officials from the Department of Health and the Welsh Assembly Government continue to work together to explore issues arising from the implementation of the policy position on cross border commissioners. In the meantime the Interim Protocol remains in place.

The arrangements currently in place to co-ordinate cross-border public service provision, including funding issues

The growing differences between the provision of health care in Wales and England, including differing financial policies, make it clear that there are a still number of issues to be addressed between the two countries. These include:

Allocations

· The different allocation mechanisms and, therefore, the different resources available make it difficult for both providers and commissioners. A technical solution between the two governments is needed if the problems for the service and for patients are not to increase.

Information Issues

· The lack of common patient databases and information systems make it difficult to track and monitor cross-border flow, its impact on services, as well as design properly integrated patient pathways.

Choose and Book & GP Referrals

· This policy does not apply in Wales and this makes it difficult to deal with split lists for patients registered with a GP both sides of the border.

Waiting Times

· The two governments have adopted significantly different waiting time targets. This makes it very difficult as provider trusts are being asked to maintain two systems. Clinicians find it very difficult to have differentiated standards for groups of patients. This is likely to get worse as the 18 week target is met within England.

Prescribing

· As from 1 April 2007, Welsh residents pay no prescription charges.

Practice-Based Commissioning

· The effect on PBC near the border needs scoping, with consideration of possible mitigation (as PBC may only be able to be applied to part of GP lists, as Wales is not currently implementing this policy). As with the GP Contract position, this does represent a challenge to whole systems working along the care pathway.

Payment By Results

· The payment by results (PbR) tariff, i.e. the amount hospitals receive for a specific diagnosis, is set nationally in England. The hospital receives the full tariff for every patient treated. This is not a method used in Wales, where contracts are predominantly block and where excess cases are paid at a marginal rate. The impact of this is that hospitals are paid less for treating Welsh patients.

· For example, one foundation trust is in the position that 20% of its activity derives from Wales - a significant proportion of their income. The foundation trust has had a long-standing dispute with Welsh commissioners over the funding of the work carried out in England by the foundation trust. There is a gap of at least £1.5 million between the money that the trust would receive for treating English patients and the income it receives from Wales. The foundation trust reached an interim agreement with the Welsh commissioners to pay £1 million towards a cost of providing services of tariff of £2.5 million.

· The issues stem from the fact that the Welsh commissioners hold a position which means they will only fund marginal costs for extra activity. Critically they do not recognise any equivalent to PbR income. If the foundation trust were being paid on the basis of PbR they would be receiving around £4.5 million.

· Any trust or foundation trust has no leverage in the system to be able to resolve this situation with their LHB. Similarly, the LHB does not have an allocation sufficient to cover its costs at the PbR tariff rate. The participants in these situations are finding it a very difficult issue to engage with.

· Clearly, hospitals in England do offer differential waiting times and deliver the waiting time required by either country. This is ethically and organisationally challenging for these hospitals.

· Waiting times are an issue that highlight some of the difficulties that cross border working can present. Cross-border service provision adds administrative complexity and, from a patients' perspective, it is difficult to understand that, for example, one side of a street can be in Wales, another in England, and they will have different waiting policies, prescription charges. This can cause confusion and concern among patients who will try to change GPs to get round the system.

· Evidence from the University of Sheffield's review of ambulance travel times suggests that for some patients, particularly respiratory conditions, increased travel time can have an adverse effect. In conditions such as trauma, stroke and heart attack being able to go the nearest centre with highly specialist expertise is important. It would be regrettable if rules about funding were to cause either of these two adverse effects.

Specialist services

· There has been concern expressed by English providers of specialist services about proposals to route patients to tertiary services in Wales. For residents of North Wales providers of these services in England are much more convenient. It is also their view that for some highly specialist services, the population of Wales is significantly too small to provide a clinically and financially safe and viable population base. Our members would argue that patient choice of where to be referred needs to be considered.

February 2008

Appendix One

Legal Position in Wales

1. Regulation 2(2) of the Local Health Boards (Functions) (Wales) Regulations 2003 (SI 2003/150 (W.20)) provides that Local Health Boards (LHBs) are responsible for patients who are "usually resident in their area". If there is any doubt as to where a person is usually resident, regulation 2(3) indicates how "usually resident" is to be interpreted.

2. Save for the specialist services that are set out in the Schedule, as amended, to the Local Health Board (Functions) (Wales) Regulations which are the commissioning responsibility of Health Commission Wales (HCW), LHBs are responsible for commissioning medical services on behalf of all persons who are usually resident in the area for which they are established. LHBs have both the legal and operational responsibility for commissioning health and well-being services for their resident populations.

3. References in this document to Local Health Boards should be construed as referring to HCW where the specialist services, prescribed in the Schedule, as amended, to the Local Health Board (Functions) (Wales) Regulations are to be commissioned.

Appendix Two

Legal Position in England

1. Under regulation 3(7) of the NHS (Functions of Strategic Health Authorities and Primary Care Trusts and Administrative Agreements) (England) Regulations 2002, as amended, Primary Care Trusts (PCTs) are responsible for commissioning:

(1) services listed in regulation 3(7)(b) (e.g. accident and emergency services

and ambulance services) for all persons present in their area;

(2) other services for:

(i) patients of persons providing primary medical services in respect of whom

the PCT is "the relevant PCT" under the Regulations: (regulation 3(7)(a)(i)) This

does not include prisoners. They will fall instead under (ii). Subject to one

exception, they will be treated as usually resident at the prison in which they

are detained:

(regulation 3(8A) and (8B).;

(ii) persons who are not the responsibility of another Primary Care Trust by

virtue of 3(7)(a)(i), but are either usually resident in the PCT's area, or are non-

UK residents present in the PCT's area regulation 3(7)(a)(ii)).

2. Therefore, in general terms the English system operates on GP registration but if a person is not registered with a GP in a PCT area (including if they are registered with a Welsh GP) there is a default to the PCT where the patient is usually resident. PCTs have both the legal and operational responsibility for commissioning health services for their resident populations.