Hancock will face difficult questions over his power grab to stop ‘NHSE games’

The bill’s thrust has become clear from the draft of the government’s white paper leaked on Friday, though some important details might change before a final version is published in the next few weeks. Many of the white paper proposals are what NHS England has been asking for in formal proposals over the last 18 months, and reflect the direction the NHS has been moving slowly but inexorably towards for several years.

NHSE’s central aim of clearing up the NHS landscape by turning integrated care systems into statutory agencies, but without overdoing the central specification of how they will work, is largely intact. Clinical commissioning groups are reconstituted as ICSs, a move unpopular with some but accepted by most. There is a formal role for local authorities planned in the shape of “partnership councils”. This creates a little extra bureaucracy but does not give them real power in the NHS. NHSE and ICSs are given a bit more sway over foundation trusts, but probably not enough to set off a huge row with NHS Providers.

Local and regional decision making will still be messy, just a bit less so.

The leaked version of the white paper also includes proposals which NHSE will not be happy about — though do not expect its chief executive Sir Simon Stevens to say so in public.

These include giving the health secretary a sweeping “general power to direct NHS England on its functions”, another to transfer functions between all arm’s length bodies and even abolish them, and ability to intervene at any stage in NHS service reconfigurations.

If pursued, these risk bringing even more toxic politics back into the NHS, both in the process of putting through the legislation itself, and beyond that, in the day to day running of the service.

The government has a large majority to push through its bill, but the NHS would prefer as much political consensus as possible. It does not want useful threads (such as those about better data sharing) lost to wider controversy, or for ICS work on the ground getting bogged down in political rows, as would inevitably follow if “Keep Our NHS Public” type groups find a foothold in debates over national NHS politics. This caused no end of local headaches for ICSs back when they were known as sustainability and transformation plans and accountable care systems.

The wording of the leaked white paper scores a particular own goal by claiming, bizarrely, that the covid pandemic response has demonstrated a need for more government direction powers over the NHS. The evidence of PPE supply, Test and Trace and late lockdowns (all government responsibilities, hindered by politicians), versus vaccination delivery and freeing up 30,000 hospital beds (NHS-led projects) says otherwise.

Proposing all these new powers to Parliament will mean the health secretary facing a series of hard questions about when and how he might be planning to use them.

Will he, for example, be quietly suggesting to NHSE that it buy goods or services from ministerial pals (as is alleged over so many government pandemic procurements)? Could he direct NHSE to push more money to particular areas, like Robert Jenrick is accused over the “towns fund”, or to fund drugs which patients want but which NICE has not deemed value for money? And on reconfiguration, does he want to be asked to tinker every time an ICS wants to merge two GP practices, with some local disagreement, or to close an urgent care centre?

As drafted the proposals would even, incredibly, allow Mr Hancock to shut down NHS England, NICE or the Care Quality Commission altogether, without primary legislation. Surely such an overwhelming “Henry VIII power” in relation to independent bodies with important and contentious responsibilities is not actually intended.

None of these kind of directions are actually what Mr Hancock has in mind, of course, but why allow the possibilities and questions even to arise?

Presumably, and understandably, he and others in government feel they need to wrestle control of the health agenda – especially NHS spending – back from NHS England, which under Sir Simon’s leadership has deployed its independence to maximum effect, and sometimes quite brazenly. 

One DHSC insider says it is the inevitable response to NHSE “behaviour and games in recent years”, but that ”ideally it would be more to deter silliness than used routinely”.

The government can argue that its proposals will not give it powers over the local NHS — only NHSE nationally — so, it can argue, NHS “operational and clinical independence” would be maintained, as NHSE requested in its most recent proposals. But conversely, will there be anything in the bill to stop ministers simply directing NHSE to intervene locally on their behalf?

Briefing to the Telegraph points to the kind of minutiae that some in government have in mind: ”Ministers are understood to have been particularly frustrated after unsuccessfully asking the NHS for key data during the crises, only for senior health service figures to announce it themselves.”

NHSE, and others who think government control of the NHS should stay at arm’s length, will hope that over the next few months government will step back from the brink, perhaps moving from broad general powers of “direction” to specific ones of “intervention”, and ensuring it has to justify their use to Parliament each time it makes use of them.

There are other areas in the proposals in which important gaps must be filled, including the new regime to replace current competition rules (which NHSE will consult on separately), and a final decision on where Public Health England’s non-health protection jobs will go.

And there is the question of how the legislation will really help with the grim realities facing the NHS as the pandemic ends. For example, the proposals nibble at the issue of workforce shortages, but do not resolve who is responsible for solving the problem and how. 

The NHS must deal with enormous - and rapidly growing - elective care waiting lists, but the payment by results and market choice systems which proved so effective in noughties in dealing with that challenge are being swept away by these reforms. And there is a plan for rapid service transformation, which probably will not be helped by a direct line from the secretary of state.

Many in government would hope that this bill would finally lay the ghost of the Lansley reforms. The leaked white paper suggests it might be every bit as controversial.