The role of the independent sector in the government’s plans to reform elective care services

Relationship issues?

The future development of the relationship between the NHS and independent sector seems crucial to the success of the plan. But the relationship between the two has often been seen as a zero-sum game. Since January 2024 independent sector providers have been entitled to apply for accreditation from Integrated Care Boards (ICBs), subject to which they must be given contracts for elective services. In some instances, this has been the meeting of a “willing provider” with an “unwilling commissioner”.

Independent providers have experienced slow accreditation processes which they feel lack transparency. ICBs have been concerned that independent providers will not treat a balanced case-mix, taking the upside of relatively simple cases while NHS trusts are left to focus on complex cases for which they’re not adequately compensated by the NHS Payment Scheme. This has in instances created an environment that is not conducive to partnership working. Ultimately, independent providers can end up with a contract but limited assurance that they will receive a sustainable number of referrals, which will not drive investment in new capacity. Successfully involving the independent sector in the elective plan will therefore require a different approach.

The agreement anticipates dialogue at a local level between ICBs and the independent sector about local priorities. This brings to mind the apocryphal quote from Henry Kissinger “Who do I call if I want to speak to Europe?”. Independent sector providers come in many shapes and sizes and there is unlikely to be a single voice which speaks for them all, even on a service-by-service basis. Many ICBs lack the market knowledge or capacity to engage with the independent sector in a fair and transparent way. In particular, it is likely to be difficult to identify potential new market entrants who could bring innovation and associated benefits in terms of productivity and quality of care.

The role of trusts

It seems more likely that NHS trusts/Foundation Trusts, whether acting individually or as a provider collaborative, will be better placed to understand and respond to the offering within the market. In many cases this will be because clinicians know their professional peers, or sometimes it will be the same people working in both NHS and independent sector roles. There are clearly issues that would need to be worked through in terms of managing conflicts of interest and promoting patient choice, but a partnership approach seems more likely to arise between two (or more) providers rather than between an independent provider and a commissioner. Collaboration between trusts and independent providers would allow trusts to benefit from greater efficiencies while giving independent providers the predicted levels of activity that would support required investment.

Irrespective of how elective capacity develops across the country, there will be issues to be worked through in terms of the NHS Standing Rules, procurement and contracting. At Blake Morgan we have deep sector expertise and experience that enable us to handle the legal complexities, allowing commissioners and providers to focus on the delivery of high-capacity, quality care. Get in touch with our health sector experts to discuss how we can support elective recovery in your area.