Ministers need to work out how to curb NHS England’s power and responsibilities - but by devolving it, not taking it for themselves - writes HSJ deputy editor Dave West. 

About a year ago HSJ asked: “What will the prospect of major health legislation unleash?… This is a long game and we could well see general elections and new prime ministers before it’s over…Starting to pull on one or two threads of the 2012 Health Act might lead unavoidably to unravelling the rest, and a major redisorganisation…There are already signs of how the exercise could snowball into something even more far reaching”.

Well we’ve seen a new prime minister and a general election, and reform of the Lansley Act now seems set to be carried out under this administration.

According to The Times this weekend, the government is planning to use it to rein in NHS England, giving ministers more power to direct it.

This tension follows a pattern which has become familiar in recent years: Funding is given to the NHS; yet performance continues to struggle; the NHS looks for more money; and others in and around government bang their fists in protest.

Meanwhile, ministers’ requests for new initiatives and announcements — on GP waiting times last year for example – are constantly blocked by NHSE until the Treasury coughs up the necessary cash.

In return – government signals it is going to get tough, and there is talk of imposing new measures, penalties and – as per the suggestion in The Times – legal restrictions.

It is probably no coincidence that this story, which is light on detail of the plan, turned up in the middle of Budget negotiations – with NHSE pressing again for multi-year funding deals to back-up the prime minister’s promises of more NHS staff and buildings.

The truth is new laws would do little to ease ministers’ frustrations, which are mainly a product of Sir Simon Stevens’ personal abilities and positioning, and of the immovable reality that the service has not had the money, staff, or facilities needed in the face of spiralling health need, and failing social care and support.

Why don’t ministers use the powers they already have, like issuing NHSE with a tough “mandate” and taking action if Sir Simon cannot stick to it, for example? Because they would look silly, and they don’t have any good alternatives to the plan being pursued.

The Stevens factor means that when Sir Simon leaves the job, sometime in the next couple of years, there will probably be a shift in power back to ministers; simply because NHSE will be run by someone with more appetite for the operational, and less ability and interest in policy making. Meanwhile, the legislation in question is unlikely to come into force much before April 2022 – so isn’t a solution to any urgent problem (and isn’t likely to affect Sir Simon directly).

NHSE has become dysfunctional

The government is onto one thing, however: The legislation does need to shrink NHSE, its responsibilities, and its power. But they shouldn’t go to ministers – they need to be devolved back to regional, system and local levels.

NHSE is enormously, dysfunctionally, too big. It has a list of tasks so big that no single statutory body could ever plausibly succeed at. All the more so now it is eating NHS Improvement, which in turn has been eating Health Education England, and so on.

NHSE’s job description snowballed during its inception to keep the Lansley liberation vision in check, turning it into the greatest quango in the sky”.

Since then the snowball has kept rolling: NHSE itself has 5,600 whole-time equivalent staff. NHSE and I together now have 7,300 – 3 per cent down on a year ago, before their merger, but still 12 per cent up on 2015.

The organisation has a huge regional and local footprint, with direct responsibility for organising services worth £25bn a year, across the entire country, along with very extensive local monitoring and intervention responsibility. This leaves swathes of big decisions about thousands of major services made several rungs down and with little outside scrutiny, or transparency about their quality.

NHSE would disagree that it has too much power — and if ministers pursue their power grab, it will likely revive its own bid to claim the right to direct foundation trusts.

But it has long agreed that its current responsibilities are too big to be workable, and that many lay in the wrong place. Hence it has made repeated attempts to push some of its ludicrous task list out to local organisations and committees.

There has been discussion, for example, about devolving specialised service decision-making for at least five years. These talks have gone nowhere fast except, notably, in mental health.

No easy answers

The default candidates for NHSE to devolve power to are integrated care systems — but what form do they take, and are they really able to take on the necessary roles?

The NHS is still engaged in experimenting to find the answers.

NHSE has supported Greater Manchester’s devo experiment, and tried to get ICSs to a point where they can do their own system regulation, strategic planning, and take back financial autonomy. But progress has been painfully slow — in part because they have to work against the Lansley legislation.

In coming months the very most able and willing ICS could take over NHSE/I’s “oversight” and ”scrutiny” jobs. But for most, the buck will still continue to stop with NHSE.

ICSs don’t hold their own funds and don’t have accountable officers — in Treasury terms, they don’t exist. They are subservient to their members and can’t direct them: plenty of FTs don’t play ball with their ICS’ strategies or financial plans, leaving NHSE/I to weigh in and broker a deal. Most don’t cover a patch big enough to take on substantial specialised commissioning from NHSE, nor to make some of the big decisions about secondary care. Whether all this is a barrier to progress is open to debate.

For ministers, the options range from adopting NHSE’s proposal from the autumn — in which ICSs start to adopt some statutory governance rules, but do not become legal entities; and risk that they might never fully take on devolved responsibility and power.

At the other end of the spectrum, government could establish ICSs as legal authorities — abolishing clinical commissioning groups and possibly subsuming trusts too, or at least giving ICS strong powers over them. Of the many dangers here are disrupting the current movement toward partnership and collaboration; and the political risk of what would be a wholesale restructure. In NHSE’s own words, it would “necessitate a major change to the NHS’s existing organisational and accountability structure… and would be an unwelcome disruption and distraction at this point”.

It would make it a pressing priority for government to decide what exactly replaces the NHS “internal market” of the last three decades, rather than the current approach of fudging it.

The most likely answer at the moment from the Department of Health and Social Care is closer to the existing NHSE proposal: perhaps creating an ICS committee named in law, mandatory nationwide, and with defined functions and membership — similar to health and wellbeing boards, and short of a “legal entity”. It would probably mean a mandated formal role for local government, which itself could be controversial. Despite some criticism leveled at Greater Manchester’s devo efforts recently, its health and care authority could be a useful model.

Boris Johnson has described himself to cabinet as “basically a Brexity Hezza” — meaning that, leaving the EU aside, he favours the devolutionary philosophy famously championed by Michael Heseltine since the Thatcher years.

Will the former mayor of London’s localising instincts triumph, or will he fall foul of the temptation experienced by so many prime ministers, to try and take greater control of the nation’s most beloved institution? In the long run, it could make Brexit look simple.