Posted by:21 July, 2011
It is well known that construction lawyers are a breed apart. They need to be because they have to deal with everything from how building regulations might apply to mud homes that have been erected, to impossibly conflicting price and payment schedules, the applicability of international rules and the export and import of products from entrepots. What is not as well known is their ability to understand the real nature of what those involved in advising mutuals and social enterprise businesses are doing at the moment.
Having pondered the activities of the Capsticks social enterprise and mutuals team recently, David March (Capsticks’ construction law expert) opined that said group was in the business of “mutating, hatching, splitting and doubling”.
Not quite in the fashion perhaps of the “Fantastic Metamorphosis, Other Worlds” described by Marina Warner in her book of the same name, but public bodies are certainly experiencing a metamorphosis of sorts at the moment. This includes the shaping, forming, assuring and hiving off of new businesses which appears to be part of a dynamic process caused by natural business cycles and processes of generation and evolution, growth and decay.
If the governance is robust, the management strong and the leadership inspirational, then one can begin to be excited about the possible outcomes that could be achieved
Health and social care has been the subject of many changes over the years and it is fair to say that quite often the results of the change processes are not entirely new organisations with no links to the parents from which they came. DNA is hard to wipe out completely and the ‘soul’ of an organisation can migrate from one body to another.
So, with mutuals and social enterprises emerging out of local authorities and health bodies, the community benefit test of these new organisations is a good link back to the public sector spirit and an embodiment of aspects of the ethos, yet the new organisations function and exist in the different worlds of both the private and third sectors.
One can see from the differing and ever-changing environments that these new organisations need to operate in the importance of flexibility and the ability to be transformative, constantly adapting as the only way to thrive in such changeable conditions.
The stresses, strains, forces and pressures that they will be subject to could result in shapes and sizes, qualities and characteristics which might not have been predictable at the start of the process, but if the governance is robust, the management strong and the leadership inspirational, then one can begin to be excited about the possible outcomes that could be achieved.
The reincarnation of mutuality in businesses developing out of the changing public sector may only have taken hold relatively recently, but its historical roots are strong and its inherent focus on involving in the business those who benefit from the services it provides is already having a strong impact on the market place. A key advantage for the new mutuals should be their involvement of patients and users in their decision-making processes.
This should be an advantage because it means the new organisations are able to show exactly how their business is aligned to the needs of their patients or users. However, this alignment is not all one way and it really is very interesting to see how the counter-balancing forces on the commissioning side are amassing and developing, including patient involvement in the decision-making of the NHS Commissioning Board, the Clinical Commissioning groups and the influence of the Health and Wellbeing Boards.
Under the latest proposals in the Bill, local authorities and clinical commissioning groups will need to involve Local HealthWatch organisations and the people who live and work in the area in joint strategic needs assessments. There will also be a duty on CCGs to consult Health and Wellbeing Boards and on the promotion of patient involvement in the exercise of their functions.
It is clear that where mutual and social enterprise organisations are involved in the provision of health and social care, in the future, patient involvement should be occurring at both the commissioning and provider levels and I do not see this as an unnecessary overlap of resources. Two heads are better than one and there will be a more sophisticated debate about service levels, specifications and standards; care pathways are likely to be more relevant and focussed. The announcement by the government of the available £1m of funding available to support the development of Health and Wellbeing Boards should help the Boards to get themselves fit for this crucial purpose.
Nobody really knows how their own particular journeys will develop but what is clear is that businesses need to be ready to transform, re-shape and develop on their journey if they are to continue to survive and thrive in the current environment. So, don’t be worried about the twists and turns, just ensure that you have a structure and set-up that enables you to rise to the challenges ahead.
From Chris Brophy
Chris is a partner with Capsticks specialising in commercial and contractual work for healthcare bodies, social enterprises, mutuals and charities. He advises on major constitutional and governance changes, such as the implications of the new ways of working in primary, community and social care