The Department of Health has started to adopt ‘extra-legislative’ solutions to problems, stepping outside or even ignoring the legislation on the statute books, but this won’t help the NHS be fit for the future, Kieran Walshe says 

On seeing that the Queen’s Speech contained no proposed legislation on health and social care, HSJ readers may understandably have breathed a sigh of relief. 

Kieran Walshe

After the traumas of the Health and Social Care Act, they might feel it is good to be left to get on with the job with no more “top-down reorganisations”. 

The last government was clearly so traumatised by the experience of passing and then implementing the unworkable Lansley bill, that this one is now scared even of bringing forward necessary, uncontroversial and worthy reforms like the Law Commission’s proposals for a new legislative framework for health professions regulation. 

Their motto seems to be: if it has health in the title, treat with extreme caution.

Sooner rather than later reform

While I think British governments often legislate too much and too carelessly, I think there are two problems here, which mean we really do need a health bill in this Parliament, sooner rather than later.

First, the legislative chaos and complexity of the Health and Social Care Act 2012 has left us with some pretty unworkable ideas embedded in primary legislation. 

‘The legislative chaos and complexity of the act has left us with some pretty unworkable ideas’

The intricate clockwork mechanism of the Lansley marketplace, any willing provider, mandated tendering and competition, economic regulation by Monitor and so on has never really been implemented, and never will.   

It is simply incompatible with the NHS Five Year Forward View, which scarcely even mentions competition. 

But as long as those provisions are in the act, they will have a chilling effect on organisations and commissioners who will fear that someone will take them to judicial review, waving a copy of the Health and Social Care Act and pointing to section 57 clause 43J or whatever.

Second, much of what this government wants or needs to do – particularly implementing the forward view and their quite interesting proposals for health devolution to Greater Manchester – needs primary legislation.  

Extra-legislative solutions

Both these reforms entail fundamental changes to organisational forms and function in healthcare providers and commissioners, and to the roles and functions for national bodies (like NHS England, the Care Quality Commission, Monitor and so on) all of which are set out in primary legislation.

In the last couple of years, for understandable reasons, the Department of Health has started to adopt what might be called “extra legislative” solutions to problems, stepping outside or even ignoring the legislation on the statute books. 

The first example of this was the conjuring of commissioning support units out of the ashes of primary care trusts and strategic health authorities in 2011-12. 

CSUs are not mentioned anywhere in the Health and Social Care Act. They have no legal form or organisational existence and governance; they don’t have accountable officers; they are simply administrative units within the enormous quango that is NHS England. 

‘Sooner or later, this government is going to have to grasp the nettle of revising the act’

Two years on, their responsibilities, functions, powers and duties are still not defined anywhere in the legislation.  

The second example was the invention of “co-commissioning” primary care by clinical commissioning groups to get around the nonsense of NHS England commissioning directly from every general practice in the country. 

But CCGs have no legislative powers to commission primary care, and doing so raises a host of conflict of interest issues which the act was designed to avoid. 

Perhaps the most telling recent example of these “non-legislative” solutions to problems has been the way NHS England created the voluntary tariff for acute care as a way of getting around the unworkable tariff setting procedures of the act. 

In effect, NHS England has simply agreed with providers to ignore the legislation in the interests of getting an agreement.

But, looking forward, this kind of extra legislative solution simply cannot be used to carry out this government’s major reforms to models of care and health devolution. 

There is a good reason why we have primary legislation – to set out clearly how the system is meant to work, who is responsible and accountable for what, and what functions, powers and duties statutory bodies have.

Sooner or later, this government is going to have to grasp the nettle of revising the act, and putting a sound and durable legislative framework for the NHS in place which is fit for the future.

Kieran Walshe is professor of health policy and management at the Manchester Business School