In the first in our All Adult Continuing Care webinar series in partnership with Weightmans, their legal specialists covered the evolving risk landscape facing ICBs and where they need to strengthen governance, manage risk and ensure compliance.

Understanding the current ICB risk landscape

Abby Combes, Consultant, Weightmans described the impact of artificial intelligence and an increasingly litigious public, both of which are creating new legal and governance considerations for NHS organisations.

She examined the growing complexity of larger ICB footprints. Further challenges identified were funding changes and the increasing expectation placed on smaller organisations and teams, many of which are still required to deliver extensive operational responsibilities while simultaneously taking on strategic commissioning roles.

Abby also highlighted the risk of losing organisational memory as experienced staff move on. The loss of historical knowledge, local context and institutional expertise can create governance risks and affect long-term decision-making.

Most importantly, Abby discussed the general sense of pressure experienced across the system, with many leaders lacking the time and capacity to step back and reassess organisational priorities. She encouraged attendees to review their statutory responsibilities regularly and ensure resources remain focused on those functions that deliver the greatest value and impact.

Commissioning, Compliance and Cost Pressures

Jill Weston, Partner, Weightmans covered the increased threats of judicial review process around commissioning decision-making.

She highlighted a noticeable increase in public law challenges relating to commissioning decisions. These challenges are being brought by a range of parties, including other statutory bodies, patients and families. AI-powered tools are increasingly being used to support challenges and scrutiny of commissioning decisions.

Jill discussed the fact that recent legal decisions are carrying substantial cost implications for commissioners. Particular focus is now on what constitutes an appropriate package of care, where commissioning responsibilities sit, and how to demonstrate robust and defensible decision-making.

Jill explored the continuing tension at the interface between health and social care. There are increasing attempts to transfer costs between systems, alongside wider capacity pressures that can drive additional expenditure through delayed discharges, intermediate care requirements and bed-blocking.

Mental Capacity, Deprivation of Liberty and Court of Protection

Paul McGough, Partner, Weightmans explored key legal developments affecting commissioners and providers, particularly in relation to the Mental Capacity Act, deprivation of liberty and welfare decision-making.

He covered the increasing complexity of assessing capacity, evidencing best interests decisions and managing disputes involving families, advocates and proxy decision-makers. He highlighted the importance of robust processes and documentation to ensure decisions remain lawful, proportionate and person-centred.

Paul placed significant focus was placed on Deprivation of Liberty and the challenges organisations are facing in the post-AGNI legal landscape. He covered the implications of Section 21A Mental Capacity Act challenges, the growing use of Community Deprivation of Liberty (COPDOL) processes, and the need for commissioners to understand their responsibilities when restrictive care arrangements are required outside traditional care settings.

He also examined developments relating to serious medical treatment decisions, including lessons emerging from the Epsom case and the practical questions this raises for NHS organisations. Paul considered which cases should be referred to the Court of Protection, when legal intervention is necessary, and which organisation should take responsibility for making applications to the court.

A recurring theme throughout the session was the increasing overlap between commissioning and welfare considerations. Decisions cannot be driven solely by financial pressures or service availability; commissioners must carefully balance legal obligations, individual rights, safeguarding responsibilities and clinical need when making complex care decisions.

Ken Jones, Directory of Delivery, MIAA commented: “ICBs operate within an increasingly demanding environment. Those that strengthen governance, understand their legal responsibilities, have close collaboration between commissioning, clinical, safeguarding and legal teams will be best placed to navigate future challenges.”

Book the next event 

The next event in the series will take place on 12 November and will explore Mental Health Act reform and its implications for ICBs.

Book here