The Integrator: Legislation back on the table

After a period of uncertainty, it appears there is a renewed push to table promised NHS legislation this autumn. But, given the immense changes the UK has undergone since legal changes were first mooted, it is far from certain the legislation will take the form originally proposed.

In September 2019, NHS England had asked for changes that made procurement easier, allowed for NHSE and NHS Improvement to merge, and to set up committees in common between providers and commissioners. The Conservative Party manifesto promised to enact them.

Since then coronavirus has totally transformed the health and care system, spotlighting the weaknesses of care homes, rapidly forcing providers to work together and questioning the value of some arms-length bodies, especially Public Health England.

As the NHS looks to reset from coronavirus, it is possible the legislation will be significantly beefed up.

It is clear that integrated care systems, still dependent only on strong relationships between those involved, need more powers to operate.

Former NHS England deputy chief executive Dame Barbara Hakin said in April that the demise of statutory regional NHS bodies, in the shape of strategic health authorities, may have hampered the service’s response to coronavirus, as SHA’s had previously played a major role in emergency planning.

Some argue that ICSs and sustainability and transformation partnerships needed more power during the crisis to direct providers and commissioners, rather than relying on consensus. The NHS did work incredibly collaboratively during the peak of the pandemic period. However, this was a result of the Department of Health and Social Care centralisng so many decisions, while also letting individual NHS providers work out local arrangements themselves. 

As the NHS returns to something approaching normality there is the view that these ad hoc “war time” arrangements will no longer be appropriate.

It is not surprising therefore that a report by NHS Confederation this week found a much larger appetite among ICS/STPs for their systems to become full statutory bodies. 

This is not what NHS England originally proposed. It remains wary of the distraction of a rushed top down reorganisation and knows that many of the ICSs are not mature enough to exercise new powers. It would prefer to manage grip during this transitional period through its seven regional teams, which have made efforts to draw in system leaders to its decision-making process.

The Treasury would, as ever, like to see whoever is in charge carrying clear financial accountability – which suggests placing ICSs on a statutory footing. However, that would require further legislation altering the powers of foundation trusts and local authorities, to ensure that they can be fully involved in ICSs. No10 – which now of course has the Treasury on a short lead – will be very wary of the time-consuming political fuss this would cause.

Even without taking the step desired by the Treasury, the clinical commissioning group as it is traditonally recognised is all but dead. With or without legisaltion, ICSs will take on the functions of its CCGs and use those commissioning powers to make ICS-wide funding decisions. NHS England will now allow very few, if any, exceptions to its January 2020 operating guidance that said there should be one CCG per ICS.

As for timing, there is now pressure to get this legislation done quickly. One source I spoke to said the current national directive issued by DHSC in March, to legally direct NHSE to exercise key functions normally held by CCGs, could be further extended beyond 2020. This could allow for secondary legislation to be enacted, to ensure a smooth transition of power from NHSE to ICSs, but it is not likely to be enough time to pass primary legislation.

HSJ has reflected over recent years that many in government would like to exercise more direct control over NHS England and NHS Improvement, but that this was unlikely while Sir Simon Stevens was in post. However, with Sir Simon nearing the end of his tenure, a tighter ministerial grip is coming – whether via legisaltion or less direct means.