MEMORANDUM SUBMITTED BY DEPARTMENT OF HEALTH (CBPS 82)

1. The Department of Health is pleased to have this opportunity to provide a Memorandum to the Welsh Affairs Committee on the provision of cross-border health and social care services.

2. This Memorandum covers:

· The extent to which cross-border health and social care services are currently provided for, and accessed by, the Welsh population;

· The arrangements currently in place to co-ordinate cross-border service provision, including inter-governmental protocols;

· The commissioning, funding and quality of cross-border services;

· The extent to which health and social care policy has diverged across the UK since the introduction of devolution, and the impact that this has had;

· The extent to which mechanisms are in place for identifying and resolving cross-border deficiencies.

3. The Memorandum focuses primarily on health care. The commissioning and provision of social care services is the responsibility of individual local authorities and there is no centrally-held data on the extent to which local authorities in Wales commission services for their population from providers in England. The main flows across the border are placements for looked after children, and residential care for older people, who are normally able to exercise choice over their care provider.

Cross-border health services accessed by the Welsh population

4. The border between England and Wales does not represent a barrier to the provision of health care. People resident in Wales have always accessed health services in England and people resident in England have done the same in Wales.

5. This is particularly the case in a number of border areas where the nearest GP practice to a person's home might well be on the other side of the border.

6. There are also well-established relationships and flows of patients between GPs and commissioners in one country and hospitals in the other. Welsh residents particularly access services in Cheshire, Wirral, Herefordshire, Shropshire, Gloucestershire and Bristol, as well as specialist services further afield, (such as specialist cancer and children's centres).

7. In 2007, around 19,000 patients resident in England were registered with a GP in Wales. An estimated 14,000 who were resident in Wales were registered with a GP in England - a net flow of 5,354 from England to Wales.

8. The number of Welsh residents using English hospitals has increased in recent years. Almost 227,000 attended outpatient appointments in 2006/07. The previous year there were 216,000, and in 2004/05 the reported total was 140,600. (NB It is believed that the reported increase after 2004/05 is in part due to an increase in the completeness and quality of the outpatients data).

9. The number of Welsh residents admitted to English hospitals has also increased. In 2006/07 there were 57,000, compared with 55,000 the previous year. In 2004/05 the number was 48,000). 13,000 of these patients were admitted via A&E departments in 2006/07, compared with 11,000 and 10,000 in the two previous years respectively.

10. The number of English residents treated at Welsh NHS Trusts is significantly smaller. In 2005/06 there were fewer than 13,000.

Arrangements to co-ordinate cross-border service provision, including inter-governmental protocols

11. A devolution concordat was agreed in 2001 to provide a framework for co-operation between the Department of Health and the departments or directorates concerned with health and social care in the UK Department of Health, Cabinet of the National Assembly for Wales and Department of Health, Social Services and Public Safety Northern Ireland. This sets out the over-arching principles within which the Department of Health and Welsh Assembly Government co-ordinate cross-border services.

12. The Department of Health has responsibility for all of the UK (England, Scotland, Wales and Northern Ireland) in some areas where national co-ordination or leadership is required. These include:

· International and EU business, including the negotiation of legal agreements;

· Co-ordination of planning for pandemic influenza;

· The licensing and safety of medicines and medical devices - led by our Executive Agency the MHRA;

· Certain ethical issues such as abortion and embryology.

13. An inter-government protocol is in place to address commissioning responsibility issues. The legislative positions in England and Wales have not defined 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. In Wales a Local Health Board is responsible for the care of its resident population. In England a PCT was previously responsible for people registered with its GPs. This changed when SI 2003 No. 1497 came into effect, establishing that PCTs in England are responsible for the care of their resident population. (They do, however, remain legally responsible for commissioning services for Welsh patients registered with their GPs.)

14. The Department of Health and Welsh Assembly Government agreed that the practical implications of the change to responsibility on the basis of residence needed to be phased for border commissioners, to ensure that patients receive the services they require and can fully understand the implications of accessing the other country's healthcare system. In 2005 an interim protocol was agreed to address this, and to take account of the legislative anomaly.

15. The interim protocol relates to patients living along the border in Flintshire, Wrexham, Powys, Monmouthshire, Denbighshire, Cheshire West, Shropshire County, Herefordshire, Wirral and Gloucestershire. It confirms that for people resident in these LHB and PCT areas the commissioner which has operational responsibility for their care will be determined by GP registration in all cases, rather than residence. (The legal responsibility remains with the body covering the area in which the person is resident). This protocol has been renewed annually since 2005 and is currently in place until April 2009 (see Annex 1).

16. The principles according to which service providers in either country treat patients from across the border have been established in WHC (2005) 12, and in letters from DH to the Strategic Health Authorities. They confirm that Welsh providers are required to work to the standards and targets that are set by the Welsh Assembly Government for all the patients who they see and treat. This means that patients from GPs in England who choose assessment or treatment in Wales will be seen or treated within the maximum waiting time targets and other standards applicable to the NHS in Wales.

17. English providers are required to work to the standards and targets that are set out by the Department of Health for patients that are the responsibility of English commissioners. Welsh commissioners will commission work from English providers for patients that they are responsible for so as to ensure that clinical priorities are met and that Welsh maximum waiting times for patients are delivered. These patients will be reported in the English provider data-sets but will be separately identified and the independent Healthcare Commission have agreed that any breaches of the English maximum waiting times by patients who have been referred by a Welsh GP will not be included in the Trust's performance rating.

18. The following table illustrates the waiting times standards which apply to patients covered by the interim protocol in the range of circumstances identified above. (Note that in columns 3 and 4 the hospital in Wales is expected to meet the standards and targets set by the Welsh Assembly Government. However the responsible commissioner in England would still be expected to secure services for their patients which meet the standards set by the Department of Health).

Applicable waiting times targets:

19. The NHS Strategic Tracing Service (NSTS) is available to providers in England and Wales to determine the responsible commissioner for patients in England. The NSTS is a national (England and Wales) database of people, places and NHS organisations

20. The General Medical Services (GP) contract is a UK-wide contract for services, agreed between NHS Employers, on behalf of the Department of Health, and the BMA's General Practitioners' Committee. Scotland, Wales and Northern Ireland are all party to discussions on any changes to this contract. Department of Health officials have regular meetings with colleagues in the Scotland, Wales and Northern Ireland administrations to ensure, as far as possible, consistency of approach in the delivery of primary medical care in the four countries. There will always be some differences to reflect the different circumstances in each country but these tend to be on the margins of the contract.

21. Officials of the Devolved Administrations are routinely invited to join English colleagues in various groups in which services which have cross-border implications are discussed and planned.

Enter the text of the suggested reply below this comment (Your reply will appear in 1.5 line spacing as required by PRU)

The commissioning, funding and quality of cross-border services

22. In England, PCTs are responsible for funding the healthcare provision of all patients registered with GPs in practices forming the PCT. PCTs are also responsible for residents within their geographical boundaries who are not registered with a GP.

23. The Department of Health provides funding to PCTs to meet these responsibilities. Revenue allocations are made to PCTs on the basis of the relative needs of their populations, to enable them to commission similar levels of health services for populations in similar need. A weighted capitation formula is used to determine each PCT's target share of available resources. The components of this formula include the size of the population for which PCTs are responsible, their relative need (age and additional need) for healthcare, and unavoidable geographical differences in the cost of providing healthcare (known as the market forces factor).

24. Similarly, the Welsh Assembly Government allocates resources each year to Local Health Boards and Health Commission Wales (which commissions specialised services) to pay for the costs of hospital treatments provided by NHS trusts and other independent healthcare providers.

25. PCTs, LHBs and HCW commission services to meet the needs of their population through contracts or service level agreements with service providers.

26. The NHS Plan (July 2000) introduced the Government's intention to link the allocation of funds to hospitals in England to the activity they undertake. It stated that in order to get the best from extra resources there would be major changes to the way money flows around the NHS and differentiation between incentives for routine surgery and those for emergency admissions. Hospitals would be paid for the elective activity they undertake through a system of payment by results.

27. This reformed financial system offers incentives to reward good performance, to support sustainable reductions in waiting times for patients and to make the best use of available capacity. It is based on a nationally-agreed set of prices or tariffs for services at specialty level based on volumes adjusted for casemix using Healthcare Resource Groups.

28. Payment by Results is being implemented incrementally both in terms of scope and financial impact. In terms of scope, the system began in a small way in 2003-04, was extended in 2004-05, and, for the majority of trusts, included only elective care in 2005/06. In 2006/07 the scope of payment by results was extended to include non-elective, accident & emergency, out-patient and emergency admissions for all trusts.

29. In future Payment by Results will be extended to a range of other services such as specialist mental health services and ambulance services.

30. The system of Payment by Results operates only within England. The Welsh Assembly Government has chosen not to introduce it to the NHS in Wales, and it is not applicable to Welsh Local Health Boards and Health Commission Wales for the services they commission from English hospitals. The funding of these services is determined by local negotiation and agreement between the Welsh commissioner and English provider. As a result an English hospital might provide a service to Welsh patients at a higher or lower price than that paid by English commissioners.

31. Welsh commissioners spent £146m on non-Welsh NHS bodies in 2005/06. The vast bulk of this was in England, with small proportions in specialist providers in Scotland and Northern Ireland, but the exact split is not available.

32. The Department of Health in England makes an annual financial transfer to the NHS in Wales - £5.6m in 2007/08 - to cover the extra net costs of providing hospital services for English residents registered with GPs in Wales.

Divergence in health and social care policy across the UK since the introduction of devolution

33. While the core principles of the NHS apply across the UK, an inevitable consequence of devolution has been some divergence in health and social care policy between the nations. The key health policy differences which have emerged in the NHS between England and Wales have included the following differences:

34. The Welsh Assembly Government has given a commitment, set out in One Wales^[2] to 'move purposefully to end the internal market. Commissioning will be replaced by an improved planning system. The number of Local Health Boards in Wales will be reduced from 22 to eight and funding will be provided directly from the centre to NHS Trusts and to Local Health Boards. A consultation has recently begun on these proposals.

35. The NHS in Wales has given particular emphasis to an integrated approach to public health. The National Public Health Service for Wales acts as an advisory body to local health boards and local councils.

36. In England, there has been a strong emphasis since the publication of The NHS Plan, in 2000, on achieving improvements in the quality and performance of health services through a significant programme of investment and reform. This has been underpinned by a range of national targets, particularly in areas like waiting times.

Waiting Times

37. The following table sets out differences in the targets that have been announced for hospital waiting times between England and Wales.

Announced waiting times targets:

38. It is difficult to make direct comparisons on hospital waiting times between the two countries due to the differences in recording information, and different targets and timings. In England, the key figures to note on waiting times are:

· For inpatients/day cases, at February 2008 11,547 people had been waiting longer than 18 weeks. In terms of longer waits, 179 people had been waiting over 6 months.

· For outpatients 677 people had been waiting over 17 weeks at February 2008 for their first outpatient appointment.

· On cancer waiting time, 97.1% of those referred for cancer treatment seen within 62 days.

· On A&E waiting 97.9% of patients were seen within the 4 hour target in the year ending March 2008.

39. There are differences in the governance, incentives and structural approaches between the two countries in the way the NHS is run. These are summarised in the following table.

Summary of differences in structures / systems

40. One of the main difference in social care policy is the establishment of a post of Commissioner for Older People in Wales. There is no equivalent post in England.

Mechanisms for identifying and resolving cross-border deficiencies

41. A number of mechanisms exist for addressing cross-border service issues.

42. The fact that the English system of Payment by Results does not apply to Welsh commissioners using English hospitals, or to English commissioners using Welsh hospitals, has given rise to some tensions between a number of providers and commissioners regarding the agreement of appropriate prices for services.

43. The differences in entitlements for patients in the English and Welsh systems also has implications for patients who live on one side of the border and are registered with a GP on the other which need to be considered.

44. A group of officials from the Department of Health and Welsh Assembly Government has been formed, with support from the NHS and the Wales Office, to address these matters. Consideration is being given specifically to issues such as the funding arrangements for Welsh patients who use English hospitals. (For example around 20% of the activity of the Countess of Chester hospital relates to Welsh patients not covered by the tariff system). Arrangements for resolving disagreements between providers and commissioners are also being reviewed. Discussion also takes place at ministerial level.

45. A range of formal and routine mechanisms are also in place to bring officials and NHS managers and clinicians together on specific policy issues.

Moving forward

46. Devolution has provided a tremendous opportunity for each part of the UK to innovate and experiment with different models for the provision and organisation of healthcare services, within a common framework of NHS principles. It is for the Welsh Assembly Government to determine its own health policies and priorities to meet the needs of people in Wales and we welcome the opportunity to learn what is successful in their different approaches, and in the approaches adopted in Northern Ireland and Scotland.

47. The Department of Health is committed to continue to work closely with the Welsh Assembly Government and with the NHS in England and Wales to ensure that patients receive the best possible care and that taxpayers obtain the best value for the use of NHS resources on both sides of the border. Patients will not be disadvantaged as a result of any of the differences in the two systems.

Department of Health

May 2008

Annex 1

PROTOCOL FOR CROSS-BORDER HEALTHCARE COMMISSIONING

BETWEEN THE HEALTH AND SOCIAL CARE DEPARTMENT,

WELSH ASSEMBLY GOVERNMENT AND THE DEPARTMENT OF HEALTH

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):

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 at Annex 2. 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.

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 a 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).

Annex 2

PROCEDURE FOR CROSS-BORDER HEALTHCARE COMMISSIONING BETWEEN

ENGLAND AND WALES: Defining usually resident for the purpose of establishing the responsible commissioner within the protocol

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 e.g. 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)

May 2008

[1] NB: The majority of prescriptions in England are exempt from charges on grounds of age or need.

[2] Welsh Assembly Government One Wales: A progressive agenda for the Government of Wales; June 2007