The European Court has upheld the long-standing principle that parties to a dispute should be able to choose their lawyers without having to go through a tender process (or use a framework).
On 7 March 2019, the updated NHS Standard Contract was published – what are the changes and how should care providers respond?
What is the NHS Standard Contract?
The NHS Standard Contract (the Standard Contract) is the contractual basis on which Clinical Commissioning Groups (CCGs) commission NHS-funded healthcare services. Typically updated on an annual basis, you can find the latest version here.
How has the NHS Standard Contract been changed?
There are many amends to the Standard Contract, but we’ve highlighted the key changes below:
Changes affecting contract management
- Withholding of funds: It remains the position that where a care provider is in breach of contract, and the remedial process is stalled as a direct result of "unreasonableness or failure to engage on the part of the provider", CCGs may withhold funding until the relevant impasse is overcome. The Standard Contract now makes explicit reference to this remedy, and perhaps as a consequence, we may see more CCGs exercising this right in the future.
NHS Providers (the membership organisation that represents NHS hospitals, mental health, community and ambulance services) has highlighted that there is no equivalent sanction for CCGs who fail to engage with care providers. NHS Providers have said they are "disappointed" by the apparent new emphasis now placed on the power, claiming there’s an unaddressed “inequality between providers and commissioners when it comes to project management”. It is disappointing that the amended contract does little to reflect the "collaborative" and "integrated" approach that the NHS is keen to promote elsewhere.
- 52-week fines: NHS England’s operational and planning guidance reintroduces fines (effective from 6 April 2019) of £2,500 for each patient whose wait for treatment exceeds 52 weeks. The Standard Contract ensures these fines will now be shared between CCGs and health providers, to give “each an equal incentive” to reduce waiting times – acknowledging that poor CCG administration can contribute to long waiting times as much as underperforming providers.
- 10 days for audit: CCGs must now give providers at least 10 days’ notice of an audit, which has been welcomed by NHS Providers who described it as going ”some way to levelling the playing field”.
Changes affecting broader policy initiatives
- System-wide collaboration and integration of services: The Standard Contract now includes wording that references the NHS Long Term Plan for "system-wide collaboration and integration of [NHS] services" and places a new requirement to “integrate effectively with Primary Care Networks”. We wait to hear how this will be reflected in binding, contractual obligations and how it is expected to result in tangible benefits for individuals.
- Evidence-based interventions: Aimed at reducing the number of "inappropriate interventions" and avoiding "ineffective" treatment, the NHS published guidance in November 2018 to help ensure that NHS clinal interventions were "evidence-based". To reflect this and to promote consistency, the Standard Contract removes explicit wording that previously gave CCGs the flexibility to adopt different approaches, and we are likely to see an increased demand for quantifiable improvements and accurately recording improvements to health outcomes.
Changes affecting specific services
- Care for people with learning difficulties: New standards to help NHS Trusts measure the quality of care they provide to people with learning disabilities and/or autism have recently been developed. Published in June 2018, you can find these standards here.
The Standard Contract now requires NHS Trusts and NHS Foundation Trusts to have "regard" for these new standards. The NHS Long Term Plan signals the intention that by 2023/24, these will be binding and all NHS-funded providers will be required to meet these standards.
- Ambulance service response times: The financial sanctions for failing ambulance response times have been amended to reflect the clinical urgency of different incident categories. The sanctions are now proportionately higher for Category 1 and 2 incidents, and lower for Category 3 and 4.
- Provision of sanitary products: In response to feedback from the British Medical Association, the Standard Contract now includes a requirement (effective from 1 July 2019) for providers to make supplies of sanitary products available, free of charge, to hospital inpatients.
Providers who operate on the Standard Contract should be aware of not only those specific contractual changes that affect their sectors but also how they are reflective of the NHS Long Term Plan.
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