NHS England may resume control of any ICB functions in the event a system is failing, according to the new NHS enforcement draft guidance.
It states that NHSE will have the power to direct an ICB or its chief executive to ‘cease to perform any functions’, and that it may carry out that role ‘on behalf of the ICB’.
It may also direct another ICB or its chief executive to ‘perform any of those functions on behalf’ of the failing ICB, including prohibiting that Board’s ability to make delegation arrangements.
In the case an ICB fails to comply with patient choice requirements, it will investigate the case and direct the Board to put in place preventative measures.
NHSE also has the power in ‘extreme cases’ to vary an ICB’s constitution and to abolish and merge it with another ICB, which it ‘may consider’ if it is satisfied that enforcement action would ‘not adequately address the failure’.
The NHS Act 2006 was amended by the 2022 Act to grant NHSE power to give directions to ICBs if it believes it is failing to discharge any of its functions, or if that outcome is a ‘significant risk’.
The new document outlines how NHSE will exercise its enforcement powers over ICBs under this Act, including setting out how it would use those powers to direct an ICB.
NHSE has a statutory duty to consult on the draft, with the final version of the revised guidance issued next year.
According to the guidance, NHSE will expect ICBs to engage with it ‘voluntarily’ to establish if there has been a failure to discharge a function or comply with patient choice requirements, or to bring that failure to an end.
It also said that directions should only be issued to an ICB ‘as a last resort’ or where other interventions have failed to adequately address the problem. An NHSE enquiry or investigation may also result in no action or accepting the ICB’s action to remedy the failure.
