The Integrator: The legislative genie is out of the bottle

Legal change for the NHS has been floated for a while now, including in the Conservatives’ 2017 manifesto. But in the main the expectation has been modest tweaks: smoothing the sharp edges off the Lansley reforms while avoiding a major upheaval.

Yet, judging by what I’ve heard in recent weeks, the variety of legislative asks flowing into NHS England as it works on the NHS long term plan are far reaching and wide in scope.

These are not from just niche interests or imaginative individuals having a punt - they are being put forward by multiple senior leaders, and appear to be being taken seriously at the centre.

There are at least four broad areas, with thinking in some seemingly more fleshed out than others:

• Underpinning sustainability and transformation programmes and integrated care systems with legislation, and establishing integrated care trusts.
• Removal of the need to automatically refer trust mergers to the Competition and Markets Authority.
• Some health procurement exempt from international competition rules.
• Reorganisation of the centre including:
  • Abolishing Health Education England, with the functions moving to NHS England/Improvement
  • Resolving NHS England/Improvement joint working
  • Depending on changes to competition rules, separating out competition functions (technically part of Monitor) from NHSE/I
  • Some public health responsibilities and functions moved from Public Health England to NHS England

There are differing views about how legally complicated, or not, all this would be.

Taking one example: Striking out references to the CMA from the Health Act seems popular, as it would stem legal fees for trust mergers - which NHS Improvement is anxious to accelerate.

This idea is being taken seriously, but lawyers told HSJ that removing the need to automatically refer mergers to the CMA would not stop it from investigating these consolidations. There is also still no decision on how the UK will trade with the rest of the world after Brexit, which will heavily affect what can and can’t be done in this area.

Another example: Subsuming HEE into NHS England might reduce overheads and simplify things nationally, but would spark fears of more raids on education budgets, of the kind often seen under strategic health authorities.

Arguably once you look in detail at other proposed changes to the national quangos, or try to decide how you will simplify NHS structures while taking system working and integrated care to the next stage, it gets no less difficult. 

Others think much of this can be achieved with a fairly confined and consensus set of measures.

What will make it as far as the long-term plan, and an NHS legislative wishlist to be issued in December, isn’t yet decided. The backdrop remains a weak government embroiled in Brexit, and a hostile opposition, particularly on a totemic issue like the NHS.

Yet with demands for legal changes now pouring in, and Simon Stevens appearing keen to make the most of the government’s offer, the legislative genie is out of the bottle.