The Greater Manchester deal

Last month groundbreaking plans were announced around the integration of health and social care in Greater Manchester. David Fagan looks at the legal issues that the arrangements could raise.

There has been a deluge of comment since the news broke on 25 February that £6bn of NHS funding is to be devolved to Greater Manchester.

Most of this has focussed on the political and conceptual issues this raises, such as: Why was the announcement led by George Osborne and not Jeremy Hunt? Is it just a means of shoring up the Conservative vote in the North and/or devolving responsibility for unpopular but soon inevitable compromises in the service provided by the NHS? Who will actually be responsible for the money? Does the NHS really need another layer of bureaucracy in Manchester? Where do the GPs (on the front line, but so far not even consulted) fit in? If it is good for Manchester, why not everywhere? If not (and some areas have already said they are not interested, at least not yet) is it the end of a National Health Service? If so, is it the start of another top-down restructure by stealth? And how would it work in areas without a Sirs Richard Leese/Howard Bernstein “Dream Team” to lead it?

There has, however, been almost no comment on the practical legal implications of what is proposed and this is not surprising since, once past the hype it is clear that the plans for how to deliver “The Vision” are embryonic at best.

Sir Richard Leese, for example, has described the deal as “provisional”, the Chancellor has only said that “It’s early days, but … We will be working hard now with Greater Manchester and NHS England on getting the details right” and Lord Peter Smith (Chair of the GMCA) has said “We are committed to working in partnership with our NHS colleagues … to take this forward”. Most strikingly, despite the Chancellor’s insistence on an elected Mayor who would (it was first reported) control how the budget was allocated as a condition of “Devo Manc”, when asked who would be accountable for £6bn of public money to be spent on a critical public service Sir Howard Bernstein was quoted as saying “We have yet to work that through”!

Given the tortuous progress of the (by comparison extremely limited) “Better Care Fund” initiative, there must be some doubt about the feasibility of negotiating the necessary details between 10 local authorities, 12 clinical commissioning groups, 15 NHS providers, NHS England, The Treasury, Uncle Tom Cobbley and all by December this year - which is the declared deadline if the handover is indeed to take place next April.

Nevertheless, some potential issues are beginning to emerge from the mist.

For example, it is said that the devolution will not require any further “top down restructuring” of systems still reeling from the Lansley reforms, but it is proposed that there will be a “Greater Manchester Strategic Health & Social Care Partnership Board” (i.e. apparently a “Super Health & Wellbeing Board”) created as a statutory body sitting above the local H&WBBs, which will continue to exist in the constituent authorities.

There will also be a “Greater Manchester Joint Commissioning Board” to commission GM wide services, with local commissioning boards continuing to commission local services in the areas of individual authorities. Clearly there will be considerable scope for debate over what commissioning functions can lawfully be delegated, and the dividing line between GM wide and local services is likely to be difficult to identify.

The GMSH&SCPB will, it seems, be supported by an infrastructure headed by a chief executive which will presumably need accommodation, IT and staff, for which governance and accountability arrangements will have to be put in place and which will have to establish relationships with the rest of the Manchester “health and care community”.

The leaked draft internal GMCA document that appears to have prompted the initial (slightly premature) announcement apparently suggested that powers might be given (presumably to the GMSH&SCPB) over workforce, regulation, information-sharing and NHS buildings – which seems likely to generate contractual, regulatory, employment and property issues.

So far as the latter is concerned the Memorandum of Understanding specifically proposes that a local property company be set up to support the redevelopment of care facilities, which may well have implications for the funding, or even ownership, of such facilities.

According to the Memorandum NHS England’s commitment to the devolution of this funding is explicitly tied to Manchester being a “trailblazer” for the kind of “new integrated care models” envisaged by NHS Five Year Forward View. It is by no means clear what such integrated models might look like, but this could have significant implications for the various providers and other stakeholders currently involved.

Similarly the Memorandum says that “shared outcomes … will drive changes to organisational form where necessary” and that the Council will be “responsible for designing and creating the provider structure and form to support its commissioning intentions” – which creates the possibility of existing structures (organisational and commercial) being dismantled and replaced with new ones, with all the commercial and workforce issues that could entail.

One issue that has bedevilled efforts to integrate health and social care to date has been problems around data sharing. Clearly those issues will have to be resolved if the proposed integration is to be effective.

The Memorandum also proposes that Greater Manchester should “lead the regulation of its provider community, with support from Monitor, the NHS TDA and the CQC”. Understandably this has met with a cool response from the current regulators, but it seems to be supported by the NHS providers so clearly the relationship between those three “communities” are going to have to be resolved in the coming months.

Finally, assuming that all of these issues can be clarified and neutralised in time for the implementation date of April 2016, it is inevitable that the new health and care landscape in Greater Manchester will have to be translated into an incredibly complex network of governance, accountability, delivery, risk and reward relationships underpinned by a myriad of joint commissioning and section 75 agreements and alliance, prime provider, lead provider and ever more innovative contracts, the drafting and ramifications of which (eg. in terms of staff transfers pursuant to TUPE) seem likely to keep local government lawyers busy for the foreseeable future.

David Fagan is a partner at national law firm Weightmans. He can be contacted on 0151 243 9575 or This email address is being protected from spambots. You need JavaScript enabled to view it..