S75 NHS Act 2006
A Guide to a Draft Partnership Agreement
A BASIC GUIDE TO UNDERSTANDING A S75 PARTNERSHIP
Hannah Doody and Andy Nash
Mental Health Programme Leads
January 2014
This final document draws upon earlier work developed in association with Robin Lorimer –
and the Pilot sites of Boroughs and Trusts for testing the Assurance Framework.
Boroughs of Enfield and Barnet with Barnet, Enfield and Haringey MH NHS Trust
Boroughs of Camden and Islington with Camden & Islington NHS foundation Trust
Boroughs of Barking and Dagenham and Havering and Waltham Forest with North East London NHS Foundation Trust.
Borough of Kingston with South West London & St. Georges Mental Heath Trust
Borough of Bexley with Oxleas NHS Foundation trust
Boroughs of Hackney with East London NHS Foundation trust
Borough of Harrow with CNWL
CONTENTS
1. Introduction 1
2. Background 1
3. Motivation for Partnership 1
4. Scope of Service 2
5. Functions of Local Authorities and NHS Bodies with Exceptions for Delegation 2
6. Section 75 Options and Minimum Agreement Requirements 2
7. Separate S75 Agreements for Commissioning and Provision 2
8. Links to Other Borough Services 2
9. Template for Agreement 2
10. Preparing the Content and Planning for the Agreement 2
11. Content of Schedules 2
12. Governance and Decision Making 2
13. Managing Risk 2
14. Annual Review of Agreement and Update of Schedules 2
Appendix 1 2
Draft Template Legal Framework 2
Schedules 23 2
Appendix 2 2
Draft Schedules Contents for Provision Agreements- need to be updated annually and kept under review under governance structures 2
1. Introduction
This S75 guide advises on how to develop a S75 written agreement between a Local Authority and a Mental Health NHS Trust body. It should be read in conjunction with the NHS Act 2006 and the Assurance Framework for the delivery of Social Care in Integrated Mental Health Services and any available guidance in order to design and draft a local agreement.
2. Background
NHS bodies and local authorities are not automatically established to undertake each other’s roles but may, through the use of formal arrangements, act as a host for managing another’s functions on a day to day basis as set out in the formal arrangement.
New powers to enable health and local authority partners to work together more effectively came into force on 1st of April 2000. These were outlined in Section 31 of the 1999 Health Act, which has since been repealed and replaced, for England by Section 75 of the National Health Service Act 2006.
Section 75 is not a contract nor an operational model or a transfer of functions. S75 is a partnership of equal control whereby one partner can act as a “host” to manage the delegated functions, including statutory functions of both partners who remain equally responsible and accountable for those functions being carried out in a suitable manner.
3. Motivation for Partnership
Partners are not automatically empowered in their own right to undertake another’s duties.
Section 75 arrangements were introduced to address legitimacy in law and ensure arrangements that are likely to lead to an improvement in the way in which functions are exercised so that partnerships are constructed and supported according to legislation that permits their use.
They require a written agreement defined in the regulations.
In brief, some of the motivating factors and benefits for Local Authorities and Mental Health Trusts to enter in to a partnership agreement are:
· An integrated health and social care service to meet the borough population mental health needs
· A shared vision of the benefits that the partnership is intended to achieve
· Jointly agreed objectives of what the partnership wants to achieve expressed as local targets.
· Seeking best use of resources for mental health services.
· Streamlining services.
· Reducing bureaucracy – one partner can carry out both the Councils and Trusts functions.
· Equal control of the whole service.
· Mutual learning to inform service improvement.
· Jointly agreed targets on what needs improving.
· Shared integrated outcomes for service users.
· Measures for success-what a S75 adds to mental health- in terms of reporting and adding value to the organisations needs and outcomes for service users.
Partners need to be honest with themselves about the reason for seeking partnership which may include moving to a reduced employer role in Councils or simply to achieve financial gain as opposed to likely service improvement, the latter of course being the most desirable aim.
4. Scope of Service
Partnerships should agree what services are to be covered by the delegated and integrated functions and these should be limited to what each party has in common for example integrated health and social care functions of community teams and not direct NHS services like in–patient care.
Partners will often feel the need to identify the specific legal functions which are subject to the partnership into the agreement.
However, these can be covered as outlined below in the regulations S1 2000 No.617 so that any change in the partnership objectives remains covered by the arrangement, that is the scope of the partnership services will always relate to all or any of the functions of both partners at any time without recourse back to amendments of the original functions adopted locally.
Thus the scale of functions necessary to be managed by the host will vary at any time according to the services and objectives agreed between the partners that the host will manage delivery of.
5. Functions of Local Authorities and NHS Bodies with Exceptions for Delegation
Partners may enter into any partnership arrangements in relation to the exercise of any NHS functions and Local Authority “health related functions” if the partnerships are likely to lead to an improvement in the way in which those functions are exercised.
They must consult jointly with persons that may be affected by the arrangements and fulfill the objectives set out in the local health improvement plan. Though it is often the case that those affected are the staff and organisations and already other mechanisms exist for consulting on changes to services.
Below is a list of functions of both NHS and Local Authority with exceptions as detailed in the NHS Bodies and Local Authorities Partnership Arrangements Regulations SI 2000 No.617. The functions are broad in their nature with some exclusions.
In brief the main exclusion in mental health is the role and responsibility of Approved Mental Health Professionals (AMHP). The local authority must retain accountability for the regulation and management of AMHPs and their functions and can not hold the NHS body responsible for the management or quality of a AMHPs service although of course it may assist with training etc.
Functions of NHS Bodies
The NHS functions are:
(a) the function of providing, or making arrangements for the provision of, services:
(i) under sections 2 and 3(1) of the 1977 Act, including rehabilitation services and services intended to avoid admission to hospital but excluding surgery, radiotherapy, termination of pregnancies, endoscopy, the use of Class 4 laser treatments and other invasive treatments and emergency ambulance services; and
(ii) under section 5(1), (1A), and (1B) of, and Schedule 1 to, the 1977 Act and
(b) the functions under sections 25A to 25H and 117 of the Mental Health Act 1983
Health-Related Functions of Local Authorities
The health-related functions are:
(a) the functions specified in Schedule 1 to the Local Authorities Social Services Act 1970 except for functions under:
(i) sections 22, 23(3), 26(2) to (4), 43, 45 and 49 of the National Assistance Act 1948;
(ii) sections 6 and 7B of the Local Authorities Social Services Act 1970;
(iii) sections 1 and 2 of the Adoption Act 1976;
(iv) sections 114 and 115 of the Mental Health Act 1983;
(v) the Registered Homes Act 1984; and
(vi) Parts VII to X and section 86 of the Children Act 1989;
(b) the functions under sections 5, 7 or 8 of the Disabled Persons (Services, Consultation and Representation) Act 1986 except in so far as they assign functions to a local authority in their capacity of a local education authority;
(c) the functions of providing, or securing the provision of recreational facilities under section 19 of the Local Government (Miscellaneous Provisions) Act 1976;
(d) the functions of local education authorities under the Education Acts as defined in section 57 of the Education Act 1996;
(e) the functions of local housing authorities under Part I of the Housing Grants, Construction and Regeneration Act 1996 and under Parts VI and VII of the Housing Act 1996;
(f) the functions of local authorities under section 126 of the Housing Grants, Construction and Regeneration Act 1996;
(g) the functions of waste collection or waste disposal under the Environmental Protection Act 1990;
(h) the functions of providing environmental health services under sections 180 and 181 of the Local Government Act 1972;
(i) the functions of local highway authorities under the Highways Act 1980 and section 39 of the Road Traffic Act 1988; and
(j) the functions under section 63 (passenger transport) and section 93 (travel concession schemes) of the Transport Act 1985.
These functions are amended from time to time by other legislation.
6. Section 75 Options and Minimum Agreement Requirements
The partners need to agree on the options available to them that they wish to use under the partnership arrangement in order to deliver their local objectives.
In brief, the full range of available S75 options available to partners are the options of:
· Lead Commissioning - the partners can agree to delegate commissioning of a service to one lead organisation to be commissioned by it alongside its own, but not necessarily unless they wish, as a part of a pooled fund.
· Pooled Funds - the ability for partners each to contribute agreed funds to a single pot, to be spent on agreed projects for designated services delivery and without a boundary between LA and NHS care.
· Integrated Provision - the partners can join together their staff, resources, and management structures to integrate the provision of a service at a managerial level or all of the way down to the front line functions of staff being integrated.
However, it would be unusual for a Local Authority to attempt to delegate or integrate commissioning on a large scale as opposed to delegating or integrating ‘provision’ with a NHS Trust whilst possibly developing broader commissioning arrangements with CCGs.
For further understanding on ‘‘integration’ please note that it can take two forms:
· Managed Resources (delegation) – delegated functions and staff (who would be described as a resource contribution within an agreement) to be managed by one of the partners alongside but not merged with their own.
· Where delegation operates the regulations do not require the agreement to contain details of the “host partner’s” own resources involved in the joint arrangement, although it may be advisable.
· Transparency of the total ‘partnership’ resources here can then be vague and unclear unless both partner’s separate resources within the ‘partnership’ are shown. However there is no requirement on the “host partner” to define their resources making the commitment to the partnership more clear. It is best then for the partners to agree their approach at the outset in order to avoid misunderstanding on the expectation of what the partnership and its oversight will cover.
· Integrated Functions (Pooled Fund) –: the partners can create a pooled budget for the purpose of the ‘functions’ being arranged from a single budget made of contributions (the staff or budgets) from both and can be managed by one of the partners day to day. Therefore, there is no boundary between the NHS Trust and Local Authority care and all of the staff can undertake (subject to training , competencies and agreement of the partners) the duties of each other rather than simply the host managing the staff of another partner alongside (but not integrated with the functions of their own staff).
For a “pooled arrangement” an NHS Trust must obtain the written consent from each Health Authority/commissioner ie CCG with which it has an NHS contract for the provision of services. This is not necessary when simply participating in a delegation agreement.
The agreement from a commissioner for this option should usually be in writing.
Key messages:
For any agreement involving service management or integration, the “host” will provide single overall management for a single set of agreed purposes as set out in the partnership agreement.
This is not automatically a ‘pooled budget’ and delegated resources from both partners will mean there can be a pooled fund of staff, two non-pooled budgets for staff managed, a pooled fund of cash for services, and/or two non-pooled cash budgets managed by the “host”.
The combined staff resource can be designated to undertake the duties of both partners subject to training.
7. Separate S75 Agreements for Commissioning and Provision
Legislation does not specifically prohibit an agreement to be entered into where the partners plan to cover the separate service provision functions off an NHS Trust along with the commissioning duties of the Clinical Commissioning Group (CCG) and the functions of a Local Authority for arranging and providing care.
However, if such a tripartite agreement is to be considered it will need to clarify the separation of commissioning resources from provider resources and the management of the agreement. This would require very complex governance and decision making plus termination rules in order to avoid for example:
· The NHS Trust participating as an equal in commissioner decision making for the NHS.
· CCGs being involved in day to day management of the NHS commissioned services.
· CCGs being involved on how the Social Care is managed.
· Confusion about who is responsible for what resources within the same S75 (CCG or Trust).
· Confusion on accountability for operational or employment liability indemnities due to different roles in such an Agreement and different cover under NHS Clinical Negligence Scheme membership.