What NHS England isn’t telling you, and more indispensable insight for commissioners, by Dave West.

First things first: there is no sign of the NHS’s various “accountable care” initiatives either expanding the private role in providing clinical services or being a cover for service cuts. So activists’ legal challenges to the accountable care organisation contract seem a bit misguided, arguably distract from the NHS’s real problems and might disrupt some areas’ hard work to fix their system.

However, as well as providing a large helping of irony, their cases, along with ACO concern in the Labour party, serve to highlight a few things.

1. The legislation question won’t go away

There is a small but important piece of common ground shared by the challengers to “accountable care” with NHS England, parts of government and the Conservatives’ 2017 manifesto.

One argument made by some of the ACO objectors is that if abandoning the law (particularly the Health Act 2012) is the right thing to do for the NHS, then government should be honest and change it.

Of course, we already know NHS England and many service leaders agree some legal change is needed to get away from fragmentation and competition – and at the time of the general election so did the Conservative leadership. The government still knows this but is denied by its deficit of MPs.

Meanwhile, two influential Commons committees will be examining sustainability and transformation programmes and accountable care systems in the new year – it’s hard to imagine they won’t be concerned about their laws being widely disregarded and the proliferation of baffling phantom NHS structures.

If a judge agrees with either of the two groups challenging the ACO contract – and it’s a real possibility – then the obvious retort for the NHS will be, “you better change the law then, minister”.

2. Foundation trusts and trusts need to change for the future

Accept that the role of the single joined up provider of core health and care, focused on a population’s health within a fixed budget, is not going to be played by a private organisation. It is pretty unworkable as well as too controversial.

Who is going to do it instead?

The NHS trust and FT landscape – aside from a little pragmatic partnering and unwanted tendering – has been locked in stasis since about 2011.

Fair enough, providers and their regulator have been working flat out to deliver more of the same, which was needed. But we also want something different.

Many acute NHS providers will always be too mistrusted to be a home for GPs, social care and public health - fundamentals of thethe integrated care formula. So for some areas, there’s a case for a new model of trust/FT.

For many acute trusts and FTs, becoming an enlightened champion of the wider system and population feels a world away, though there are honourable exceptions (Salford, Royal Free, Yeovil and Wolverhampton are among those sometimes credited). The role of mental health/community trusts varies hugely from patch to patch.

Making the leap successfully will take a lot of flexibility and a strong appetite that’s often missing.

It will take incentives – chiefly reform of the sustainability fund – and more backing and positive encouragement from NHS Improvement. It might involve a different approach to some district general hospital trusts than the default of stripping their identity.

Even the Labour party could contemplate, with the private sector excluded, how the NHS needs to transform to get to better services, a healthier population and less health inequality.

3. The name

“Accountable care” as a term originates in the US – a fact “often sufficient to kill” a policy in the NHS. It is not only political activists who are wary of it. Plenty of areas are avoiding the term as far as possible, notably Greater Manchester, whose borough level providers are “local care partnerships”, and which is unusual in having successfully embraced local politics instead of running away. The “brand” concern applies to ACSs as well as ACOs: ACSs are not the subject of either legal challenge but are a much bigger issue right now.

4. The ACS and STP Innovation Partner Framework may be interesting

This procurement framework for bringing external support into sustainability and transformation partnerships and ACSs is due to get moving properly in the new year. It is not about private providers of clinical services but that doesn’t mean it won’t stir things up. There is talk of risk/gain share with partners which – though likely a long way off – is a red flag. In commissioning language, it is FESC meets LPF. Twinned with “ruthless” rationalisation of clinical commissioning groups, it could spell upheaval and upset for many commissioning staff.

New form of NHS organisation planned for first ACOs