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APPENDIX 1

CALDERDALE/KIRKLEES/WAKEFIELD DISTRICT CLUSTER PARTNERSHIP ESTABLISHMENT AGREEMENT

VERSION CONTROL 1.0

Original drafting

VP

17 March 2011

1.1

Comments

Helena Corder

18 March 2011

1.2

Comments from taking forward the cluster

Chairs / Chief Executives x 3 PCTS

22 March 2011

1.3

Comments from Chair

Angela Monaghan

23 March 2011

1.4

Comments from CE

Mike Potts

24 March 2011

1.5

Update following Boards

VP

31 March 2011

1.6

Update following Chairs and CE meeting

HC

18th April 2011

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JOINT SUB COMMITTEE OF CALDERDALE, KIRKLEES AND WAKEFIELD DISTRICT PRIMARY CARE TRUSTS – CLUSTER PARTNERSHIP DRAFT ESTABLISHMENT AGREEMENT THIS AGREEMENT is made between (1)

Calderdale Primary Care Trust

(2)

Kirklees Primary Care Trust

(3)

Wakefield District Primary Care Trust

W H E R E A S: (a)

The Boards of the PCTs wish to establish a joint sub-committee to which they may delegate some of their functions in accordance with the Regulations (as defined more particularly below). In doing so, they recognise the transitional nature of this arrangement, and that it is made with the explicit objective of sustaining management capacity, a clear line of accountability for delivery of PCT functions in terms of statutory duties, quality, finance, performance, QIPP and NHS Constitution requirements through to March 2013, enabling the transition to GP-led commissioning, enabling new arrangements with Local Authorities and Health and Wellbeing Boards to develop and supporting provider reform elements of the transition.

(b)

The joint sub committee of PCTs ("Cluster Partnership") will be established as a joint sub committee of the following PCTs referred to as Member PCTs: Calderdale Primary Care Trust Kirklees Primary Care Trust Wakefield District Primary Care Trust

(c)

The Cluster Partnership is established in accordance with Regulation 10 of the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administrative Arrangements) (England) Regulations 2002, as amended (the “Regulations”) and shall have such powers and functions as are set out in this Agreement. The PCTs therefore acknowledge that the Cluster Partnership is subject to any directions which may be made by the Yorkshire and Humber Strategic Health Authority or by the Secretary of State.

(d)

There is a requirement for NHS bodies to ensure quality of care for those for whom they are responsible and to achieve value for money. For many functions this can be best secured by working together in a cooperative way. The Cluster Partnership is being established to undertake specific functions on a delegated basis for these reasons.

(e)

The Cluster Partnership will act in accordance with the objectives of its Member PCTs and the wider strategy for improving health and healthcare in the region covered by them in relation to the functions for which it is responsible.

(f)

The Cluster Partnership will carry out its functions in a transparent way with clinical leadership and in line with the latest guidance on public and patient engagement.

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(g)

The Cluster Partnership will function as a corporate decision-making body for the management of the Delegated Functions (as defined more particularly below). The role of the Cluster Partnership will be sustain management capacity and a clear line of accountability providing greater security for the delivery of current PCT functions in terms of quality, finance, performance and QIPP, statutory duties and the NHS Constitution. The Cluster Partnership will also provide the basis for the development of commissioning support arrangements and the new NHS landscape.

(h)

The Cluster Partnership forms part of the broader governance arrangements of the PCT. It will report to the PCT Board. The Partnership will receive reports from and provide updates to the other sub committees in the governance structure. The Audit Committees will ensure that the Cluster Partnership fulfils its terms of reference.

1.

INTERPRETATION 1.1

In this Agreement, unless the context otherwise required, the following terms have the following meanings: "Board" or “PCT Board” means the board of each respective PCT; "Chair" and "Vice Chair" mean the persons respectively appointed to or by the Cluster Partnership in accordance with this Agreement; "Cluster Partnership" has the meaning ascribed to it at recital (b) above; "Commissioned Services" means health services commissioned or to be commissioned by the Cluster Partnership pursuant to this Agreement and from time to time set out in Schedule 2; "Delegated Functions" means the functions set out at Papers 3 and 4 to this Agreement, subject to the provision at clause 13. "e-mail" means a communication by electronic mail, if a telephone call is made to the recipient within 1 hour after, and warning of its dispatch, and the number of attachments, and no delivery failure notification has been received by the sender; "Executive Officers" means the persons engaged by the Cluster Partnership to support it and its sub-committees; "NHS Body and NHS Contract" respectively mean a body and a contract so defined in section 9 of the National Health Service Act 2006; "Regulations" has the meaning ascribed to it at recital (c) above; “Sub-committee” means any sub-committee formed from time to time by the Cluster Partnership; "working day" means a working day other than a Saturday, Sunday or Bank holiday in England. "Strategic Health Authority" means, in relation to the PCTs, the Yorkshire and the Humber Strategic Health Authority whose area includes the areas of the PCTs;

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2.

1.2

A reference to the singular shall include the plural and vice versa and reference to a gender shall include any gender.

1.3

The headings in this Agreement shall not affect its interpretation.

AGREEMENT STATUS This Agreement is an NHS contract made between the PCTs as NHS Bodies pursuant to the National Health Service Act 2006, Section 9.

3.

4.

THE CLUSTER PARTNERSHIP: FUNCTIONS AND MONITORING 3.1

The Cluster Partnership is hereby established as a joint sub committee of the Boards of the PCTs in accordance with the Regulations and shall be formally known as the Calderdale, Kirklees and Wakefield District Cluster Partnership.

3.2

The PCTs acknowledge therefore that the Cluster Partnership and its sub-committees are subject to any directions which may be made under the Regulations by any appropriate Strategic Health Authority or by the Secretary of State for Health.

3.3

The PCTs jointly delegate some of their respective functions to the Cluster Partnership as set out in Papers 3 and 4 with authority to act on their behalf.

3.4

The Cluster Partnership shall abide by the Standing Orders and Standing Financial Instructions of the PCTs (but so as to incorporate the provisions of this Agreement).

3.5

The Cluster Partnership shall be able to form one or more sub-committees in accordance with Standing Orders and Standing Financial Instructions, with the appropriate approval from the Member PCTs in line with their governance arrangements.

MEMBERSHIP 4.1

Membership of the Cluster Partnership shall consist of six non-executive members, including the Chair, and five executive members, as follows:4.1.1

Cluster Chair;

4.1.2

The Chairs of the other two Member PCTs.

4.1.3

Three other non-executive members, drawn one from each of the Member PCTs’ non-executive directors;

4.1.4

The Cluster Chief Executive;

4.1.5

The Cluster Executive Director of Finance and Efficiency

4.1.6

The Cluster Executive Medical Director;

4.1.7

The Cluster Executive Director of Quality and Governance (Nursing);

4.1.8

The Cluster Executive Director of Commissioning and Service Development

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5.

6.

4.2

The Non Executive members will be nominated by the member PCT Boards and all Cluster Partnership members will be agreed by all Member PCT Boards.

4.3

Where any of the positions are occupied on a shared basis by more than one individual, that position shall only exercise one vote. Additional non-voting members may be co-opted on to the Cluster Partnership from time to time. Any proposal for an additional voting member will require the unanimous decision of the Member PCT Boards.

4.4

PCTs will identify named deputies for each Non Executive Director position and all deputies will routinely receive meeting papers.

4.5

A register of interests will be kept, setting out both PCT interests and those that relate solely to Cluster Partnership business.

4.6

The Cluster Partnership will determine the arrangements for the attendance at the Cluster Partnership in a non-voting capacity of, for example: 4.6.1

representatives of the Local Authorities; and

4.6.2

representatives of the Local GP Commissioning Consortia.

CHAIR AND VICE-CHAIR 5.1

The Cluster Chair will be adopted by the Boards of the Member PCTs following appointment from amongst the existing Member PCT Chairs by the Chair of the Yorkshire and Humber Strategic Health Authority. They will serve until 31 March 2013.

5.2

Members of the Cluster Partnership may elect a Vice-Chair from among the Cluster Partnership’s non-executive membership, to serve until 31 March 2013.

CHIEF EXECUTIVE The Delegated Functions shall be exercised on behalf of the Cluster Partnership by the Cluster Chief Executive, appointed by the PCT Chairs and the Chief Executive of the Strategic Health Authority and adopted by the Member PCT Boards to act as the Accountable Officer to the PCTs and to the Cluster Partnership in accordance with the Scheme of Delegation. The Cluster Chief Executive will determine which functions he will perform personally of those assigned to him under the Scheme of Delegation and shall nominate officers to undertake the remaining functions, for which the Cluster Chief Executive will still retain accountability to the Cluster Partnership.

7.

QUORUM No business shall be transacted at a meeting unless at least six members are present, including at least one Non Executive Director or Chair from each of the three Member PCTs.

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8.

9.

MEETINGS 8.1

There will be at least eight meetings of the Cluster Partnership each year at such times as the Cluster Partnership may determine.

8.2

An Agenda and supporting papers shall be sent to member representatives no later than five working days before the meeting. When the Chair deems it necessary in the light of urgent circumstances to call a meeting at short notice, the notice period shall be such as they shall specify.

8.3

Decisions made by the Cluster Partnership and by Cluster Partnership members acting on behalf of the Cluster Partnership under agreed terms of reference, will be binding on all members until the Cluster Partnership agrees otherwise.

8.4

The Cluster Partnership may delegate tasks to such individuals, sub-groups or individual members as it shall see fit provided that any such delegations are recorded in a Scheme of Delegation and are governed by terms of reference. Any delegation will require approval from the Board of the Member PCTs in line with their governance arrangements

8.5

The Cluster Partnership may also delegate commissioning responsibility including procurement to a Member PCT as it shall see fit provided that any such delegation is recorded in a Scheme of Delegation.

8.6

The minutes of the proceedings of a meeting shall be drawn up by the Cluster Partnership Secretary and submitted for agreement at the Cluster Partnership’s next meeting, where they shall be signed by the Chair.

DECISION MAKING 9.1

The Chair will work to establish unanimity as the basis for decisions of the Cluster Partnership. If, exceptionally, the Cluster Partnership cannot reach a unanimous decision, the Chair will put the matter to a vote.

9.2

The Chair will make all reasonable attempts to resolve any dispute arising in the conduct of the Cluster Partnership’s business.

9.3

Where, as a result of a decision by vote, one or more PCT Boards are left at issue with the decision taken, they must discuss it at a Board or relevant committee meeting and formally notify the Cluster Partnership of its position.

9.4

The Chair (or Vice Chair in the event of a conflict of interest) will seek to facilitate agreement through local mediation arrangements and may refer any dispute to the SHA, or its successor organisation, for arbitration, in accordance with the principles of dispute resolution within the NHS.

9.5

A decision of the Cluster Partnership shall be binding upon each of the PCTs, [subject to there having been a three-quarters majority in its favour except where it has been agreed that Cluster Partnership decisions are to be referred to PCT Boards for ratification.

9.6

The Cluster Partnership will not approve any proposal without evidence that it has support of patients and support of GP Commissioning Consortia. The Cluster

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Partnership will seek the views of the clinicians (nursing and medical directors) on the Cluster Partnership as to whether these conditions have been met. 10.

11.

PERFORMANCE 10.1

The Cluster Partnership is expected to improve performance and quality for individual PCTs on Delegated Functions by acting in their interests as individual PCTs and collectively. The Cluster Partnership must act in a way which supports PCTs to meet their statutory obligations.

10.2

Where, for a delegated function, one or more PCTs may fail to meet their statutory obligations or required performance standards or reasonable objectives, the Cluster Partnership will make recommendations to the Member PCT Board on reasonable action to remedy the position.

10.3

Where the concerns of the PCT are not addressed, the Cluster Chair and Cluster Chief Executive will be required by the PCT to attend a meeting of that PCT's Board or relevant committee so that it can gain assurance that appropriate action is being taken on those issues for which it remains accountable.

REPORTING 11.1

11.2

Communications 11.1.1 The Cluster Partnership shall formally report to its constituent PCT Boards on an agreed basis. The Cluster Chief Executive (or his delegated representative) acting as the Chief Executive of each PCT shall act as the overall communication link to the respective Boards and shall present the approved minutes from each Cluster Partnership meeting to the next following public meeting of the Board of Member PCTs. These minutes will not include minutes of any Cluster Partnership meeting, or part of any Cluster Partnership meeting, which is a closed session. Minutes of the Cluster Partnership meetings in closed session shall be presented to the next closed meeting of the member PCT Boards. 11.1.2

Minutes should specifically report any exceptions to the agreed programme of work that the Cluster Partnership has approved.

11.1.3

The PCTs’ representatives are responsible for ensuring that the views of the Boards they represent are communicated to the Cluster Partnership.

11.1.4

Minutes will be prepared for each meeting and there will be regular progress updates and the activities of the Cluster Partnership will be included in each PCT’s annual report.

11.1.5

Each Member PCT’s Annual Report shall include a section in respect of the Cluster Partnership, which shall be produced within the agreed timetable for the production of annual reports.

The Cluster Partnership will agree the formal reporting arrangements for performance against Contracts to ensure that Member PCTs’ Boards can discharge their statutory responsibilities and accountabilities.

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11.3

12.

13.

The Cluster Partnership will have agreed risk management and assurance arrangements in place consistent with the arrangements of Member PCTs’ Boards.

ACCOUNTABILITY 12.1

The Cluster Partnership is accountable to its Member PCTs who will set a framework for assessing the performance of the Cluster Partnership in the discharge of the Delegated Functions.

12.2

Each Member PCT is accountable through its statutory responsibilities to use its resources to improve the health of its population and retains that accountability even where functions are best achieved by working with other Member PCTs.

OBLIGATIONS OF EACH MEMBER PCT 13.1

Each Member PCT shall remain responsible for performing and exercising its statutory duties and functions for delivery of the Commissioned Services to its population and its patients. No Member PCT will exercise any functions jointly by way of the Cluster Partnership save for those expressly permitted under the Regulations

13.2

The Cluster Partnership shall co-ordinate demand and manage it under this Agreement.

13.3

Each Member PCT further undertakes to indemnify: 13.3.1

each representative member of the Cluster Partnership and every Subcommittee; and

13.3.2

each of the Cluster Executive Officers, against any liability, damages, costs, claims or proceedings arising out of or in connection with any act or omission (which is not recklessly negligent, fraudulent or involving criminal liability) committed or omitted by it during the course of performing its duties under this Agreement.

13.4

14.

Each Member PCT shall: 13.4.1

appoint its representative member(s) to the Cluster Partnership and, as decided by the Cluster Partnership, any Sub-committee; and

13.4.2

respond promptly to all requests for, and promptly offer information or proposals relevant to collaborative functions of the Cluster Partnership and Sub-committees.

REVIEW This Agreement shall be reviewed regularly, at a minimum on an annual basis, with the first review due in March 2012. Any amendment to the provisions of this Agreement must be agreed at a meeting of the Cluster Partnership by unanimous vote and endorsed by Boards of Member PCTs.

15.

DISPUTE RESOLUTION

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When any matter is referred to dispute resolution under this Clause the matter shall be determined in accordance with the dispute resolution process through the SHA or its successor organisation. 16.

TERMINATION OF THIS ESTABLISHMENT AGREEMENT This Agreement may be terminated entirely by a decision of the Cluster Partnership in an ordinary or special meeting at which all Member PCTs shall be entitled to attend and vote. Such a decision requires a unanimous vote of Member PCTs and shall taking effect in respect of all Member PCTs at the conclusion of the meeting at which the decision to terminate this Agreement is made. An individual PCT Board may decide that it no longer wishes to have the cluster partnership as a sub committee of its Board. If taking this decision, the individual Board should be mindful of the consequence on the cluster partnership, cluster management arrangements and national policy requirements.

17.

COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, but all of which together shall constitute one agreement between all the Member PCTs, notwithstanding that all Member PCTs are not signatories to the same counterpart.

18.

GOVERNING LAW The formation, interpretation and operation of this Agreement shall be subject to English law.

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