The Lansley reforms succeeded in unintended ways

Five years after one of the biggest political rows in the 70 year history of the NHS, what should be the verdict on the monumental piece of legislation Andrew Lansley launched and that caused that row?

The short answer is it has failed, at least on its own terms. The longer answer is where it has succeeded, it has done so in ways very different to those its originator intended.

The core aims of the Health and Social Care Act 2012 were threefold.

The act has clearly not put an end to ‘political micro-management’ and ‘excessive bureaucratic and political control’

First, to run the NHS even more like a “quasi-market” than in the past – using yet more choice and competition and private sector involvement to drive quality and efficiency into the service. It was to cease to be a managed service. Instead it was to be subject to “a system of control based on quality and economic regulation, commissioning and payments by results, rather than national and regional management”, in the words of the white paper preceding it.

Second, the combination of that and the creation of NHS England as a statutorily independent commissioning board was intended to take the politics, or much of the politics, out of the NHS. It would, again in the white paper’s words, end “political micro-management” and “political interference” in the service. Ministers would give the commissioning board a “mandate” and then leave it to get on with it – subject of course to some accountability.

Third, these changes were to be “permanent”. “Entrenched in legislation”, as Lord Lansley put it, so they could only be changed by another act of Parliament, not by mere ministerial direction.

Failed on its own terms

On all three counts, the act has failed. First, it has proved permanent in the sense that to date it has not been amended. But in practice it has increasingly been ignored and worked around. Two of the arm’s length bodies the act created – Monitor and the Trust Development Authority – have in practice been merged, though not legally, because the act prevents that. Their replacement body, NHS Improvement, is now slowly being merged with NHS England, though the act is making that exercise even more tortuous. It has involved creating the unique role of “associate (non-voting) non-executive directors” to get cross-representation on the two boards – a piece of 1984 speak George Orwell would have been proud of – because the act says they cannot be merged.

Second, far from the NHS being run even more like a quasi-market, the act has proved (and not just in the NHS) the high water mark of faith in “choice and competition” as the way of driving improvement in public services. The new integrated care providers being developed to get hospitals, GPs, community services and social care working better together are slowly but surely unpacking the “purchaser/provider” split that has been a dominant theme of NHS management since 1991. Combined with the merging of the boards, the NHS is heading back to a new version of more centralised management, and away from the “quasi-market”.

Third, the act has clearly not put an end to “political micro-management” and “excessive bureaucratic and political control”.

Political dynamics

Jeremy Hunt, who has been health secretary throughout this period, frets over and demands action on waiting times of all types and pores over the service’s plans for how it will cope each winter. On Monday mornings, the chief executives or senior staff from the statutorily independent bodies the act created are summoned to his office.

At times, it has felt as though Mr Hunt has been the NHS’s chief operating officer, while Simon Stevens, the chief executive of NHS England, has acted, in public at least, more like the secretary of state: outlining “sustainability and transformation plans”; spelling out the priorities (mental health and a revival of primary care, for example); while laying down the law over just how much service can deliver on the money available, and very publicly making the case for more.

The act has given the NHS an independent voice – rather too independent in the eyes of some in the Treasury and Number 10

Yet within that relationship, the act has worked. Just not quite in the way Lord Lansley intended (and whether it will survive the presence of the two very particular personalities of Mr Hunt and Mr Stevens remains to be seen). It has given the NHS an independent voice – rather too independent in the eyes of some in the Treasury and Number 10 – and has changed the political dynamics around the service. Mr Hunt says had he not acted the way he has to bring together the “balkanised” management world Lord Lansley created, the act “may well have fallen flat on its face.” His view is that “the independence of NHS England is the bit that has worked best” and is “the one thing I would not have done differently” had he been the one legislating.

What all this leads to is that at some point – if the direction of travel is to a more unified board at the head of the NHS and genuinely integrated services locally – fresh legislation will be needed. Mr Hunt and Theresa May were contemplating exactly that at the time of the 2017 general election. But the prime minister’s loss of her majority put paid to the idea. Right now, it looks a long way off. The service will have to keep working its way around the legislation as it seeks, as ever, to improve services for patients.

Nicholas Timmins is a senior fellow at The King’s Fund and Institute for Government.

His report, The World’s Biggest Quango: The first five years of NHS England, is published today.