Service reconfigurations following the failure of a foundation trust could be open to “political pressures” as a result of a proposed change to the Health Bill, lawyers and think tanks have warned.
Under the government’s amendments to the Health Bill – being voted on this week in the Commons – the secretary of state will retain a veto over plans proposed by commissioners and/or the regulator Monitor in the event of a foundation trust becoming unsustainable.
Accompanying briefing notes said this power was “expected to be used only in exceptional circumstances”, for example when commissioners have failed to “secure continued access to services, or secure services of sufficient safety and quality or provide good value for money”.
The move is a retreat from Mr Lansley’s previous position, in which an independent tribunal would have decided which services would be “designated” for protection in the event of provider failure.
King’s Fund director of policy Anna Dixon told HSJ: “The process is very different from the one they were originally proposing. They have obviously realised that a universal process of designating providers would be very difficult politically and technically.”
Addressing the health secretary’s leeway to veto reconfigurations, she said there was a political element to many reconfigurations and to who would make the decision on any service change.
“Where those decision are sat with politicians, there will be pressure for them to be overturned,” Ms Dixon said.
A King’s Fund report, published on Tuesday, suggested leaving the final decision to the Independent Reconfiguration Panel.
David Owens, a partner at law firm Bevan Brittan, also said he could “quite see political pressures taking effect”.
He said: “If the secretary of state takes the view: ‘It’s a marginal constituency and I don’t want that hospital to close’, one can see him saying: ‘The recommended action would not secure the provision of services of sufficient safety and quality and so I’m not going to agree to it.’
“He may want to be able to say ‘my hands are tied’ – but that doesn’t always wash with the voters,” Mr Owens added.
An NHS Confederation statement, published this week in response to the amendments, said: “Our key concern is the creation of unnecessary complexity. This [amendment] could mean local decision makers do not have the freedom and clarity they need to drive better care for their patients.
“Some important decisions on potential service reconfigurations are urgent, if we are to meet our savings requirements.”