The health secretary's influence over local decisions means the system has 'no credibility', according to key observers. Oliver Evans reports on moves to curb her power
Headline-grabbing marches through town centres, loud heckles at public meetings, passionate newspaper campaigns flanked by colourful logos foretelling doom - the common public response to consultations on hospital service changes has become a familiar signal to many of a failing NHS.
It is a virtual certainty that any reconfiguration plans will meet with a degree of local opposition, but it is all the more difficult for managers when public confidence is further eroded by accusations that the changes are a 'done deal'.
In theory the involvement of the independent reconfiguration panel should put doubting minds to rest by giving objective advice which, though not set in stone, is expected to be heeded and implemented in the local NHS.
The panel's website states its nine members have 'wide ranging expertise in clinical healthcare, NHS management, public and patient involvement and in handling and delivering successful health service change'.
But a growing tide of resentment towards the process argues that it lacks independence, put starkly by a Commons health select committee report in March and again last week by the Institute for Public Policy Research.
The problem is simple: the secretary of state for health's power of veto in deciding whether matters referred by council overview and scrutiny committees should go to the reconfiguration panel for advice, and later, whether to accept that advice.
The IPPR says this 'undermines the credibility and the perceived fairness of local decisions' and has meant stakeholders have 'distrusted the process and consequently rejected its outcome'.
It says health secretary Patricia Hewitt's role should be removed and overview and scrutiny committees should be able to refer matters directly to the panel, and that its advice should not go to Whitehall but the local NHS for a final decision, 'with the default expectation that the NHS should comply'.
The IPPR's conclusion, in a report on the politics of service change, says: 'A greater threat of independent reconfiguration panel review could ensure that the local NHS takes more care to make sure its processes are transparent and consistent.'
A view commonly held by campaigners was echoed at the select committee's hearings by London-based solicitor Richard Stein, who has made a career of challenging consultations in court.
The process has 'no credibility whatsoever', he said: 'Most of the things [opponents to service changes] do not like are driven by the secretary of state, so to appeal against their implementation locally to the secretary of state will not deliver anything, and that is a real shame.'
The panel has published three reports on local service changes and is looking at three more cases - but 14 proposals have not been formally referred.
Yet the health secretary's involvement in service changes remains minimal, a Department of Health spokesperson says.
'Ministers are only involved where the local authority overview and scrutiny committees believe changes have not been fully consulted upon, or they are not in the best interests of patients.
'Less than one in 10 local consultations results in a referral to the secretary of state.'
The health select committee said that when questioned by members the health secretary 'was not able to give a clear answer' on why she referred so few cases.
It concluded that while the system was good 'in theory', the health secretary's role served to 'undermine public confidence in the consultation procedure system'.
The health secretary should still be part of the process, the committee concluded - but only to rubber-stamp each and every referral that comes to her - in effect giving scrutiny committees the automatic right of referral.
But NHS Confederation chief executive Dr Gill Morgan says this would require a major upscaling of the organisation to cope with the deluge of referrals: 'Given the small number of decisions referred by the secretary of state to the panel, the proposed change would undoubtedly increase the workload and potentially create delays unless the IRP's capacity was significantly increased. The real focus for NHS organisations should be on getting local consultation working better to avoid the need for referrals to a national level.'
Hospital in my back yard
This is only half the problem: if every matter on which councillors wanted a second opinion went to the panel, NHS managers' planning for service change would have to slow down.
Councillors would also have to be reigned in, the IPPR says, by charging local authorities for 'frivolous referrals' and making sure they took into account areas outside their own by consulting through a joint scrutiny committee.
The IPPR says this would mean tackling 'HIMBYs', a twist on the 'not in my back yard' opposition to planning development, meaning 'hospital in my back yard'.
But Local Government Association acting director for adult social services Trish O'Flynn says trusts should not be quick to stigmatise committee members.
She says: 'Only about two dozen matters have been referred by scrutiny committees and we have been going through major changes in the NHS, so that would suggest that they probably are not frivolous and have been well considered.
'There is an issue about the presentation of issues locally. If you do get a big campaign then local elected members will be asked by their constituents to campaign on their behalf and sometimes that is down to the fact that the process of consultation is not transparent and the reasons haven't been explained.'
The LGA was 'not happy about the process', she admits, and councils have fed back that they are not clear about how the secretary of state comes to a conclusion not to refer a matter to the panel.
Centre for Public Scrutiny health scrutiny programme manager Tim Gilling says: 'What we have seen from scrutiny committees is a maturity about how they handle these decisions. It has not all been about party politics.
'Some scrutiny committees have said we understand and appreciate the case for change in some services and it largely comes down to maternity and paediatrics. They have said they can broadly support the case for change but there are one or two areas which we want to look at more closely.'
Yet he agreed that the health secretary should be removed from the decision-making process. He says: 'There are legitimate reasons for change, but while the secretary of state has the option to veto people will always naturally have conspiracy theories and think it is always about money.'
If reconfiguration panel chief executive Tony Shaw has a view on all of this then he is not telling. He simply says: 'Our whole criteria is based on taking an independent line so I don't think it is for us to get involved in what will ultimately be decisions for Parliament.'
But he adds that while there is a strong expectation that the health secretary will follow the panel's advice there is 'always a possibility' of rejection or 'a half-way house where they choose to go along with some recommendations and not others'.
If the health secretary rejected the panel's findings, he says: 'It would perhaps indicate that we had missed a trick. On the other hand there may be political reasons or other reasons why the secretary of state determined against our recommendations.
'But I have to say on all the recommendations we have made to date they have been accepted.'
'Not a rubber stamp'
He emphasises the panel's independence and rejects the view of some local campaigners that the body is there to rubber-stamp the wishes of the local NHS and the health secretary, who are likely to be singing from the same hymn sheet.
He points to its first review, of acute services in East Kent Hospitals trust, which he says was 'a bold first set of recommendations'.
The 2003 review urged the trust to scrap a proposed private finance initiative scheme and provide a network of services across three sites. Kent and Canterbury Hospital's accident and emergency department should be closed, the panel agreed.
But Mr Shaw says all the proposals first devised by the local NHS were not 'anywhere as near as clear cut as that'.
Former East Kent chief executive David Astley says the IPPR's proposal is 'unrealistic given the way the health service is organised, given we are a public service accountable to Parliament.
'It is unrealistic to expect that to be divorced from the political process.'
The trust's involvement with the panel was 'an extremely positive experience' which helped 'work out a sensible compromise', he adds.
Jo Bibby of Calderdale and Huddersfield PCT was involved in last year's reconfiguration panel investigation into changes to maternity services at the hospitals in the two towns.
She says: 'What the secretary of state step offers is a way of filtering. The risk of everything going to the panel, if it carried out the same level of detail that it did with us, is that it could become overwhelmed.'
Delays were caused on the ground through the involvement of the panel, Ms Bibby says. 'It introduced a longer period of uncertainty but it wasn't a time-critical delay; there were certain things we were able to start planning that would not tie us into a particular outcome.'
What of the IPPR's view that the threat of a guaranteed reconfiguration panel referral would 'ensure that the local NHS takes more care to make sure its processes are transparent and consistent'?
Ian Dalton, chief executive of North Tees and Hartlepool trust, host to the IRP's most recent review, questions this.
He says: 'I think managers have always seen the IRP as a potential component of the process. In our case we always wondered whether the IRP may be involved but that didn't mean that we took the consultation any less seriously.'
Mr Dalton says: 'The advantage of the current system is that there is parliamentary accountability for the decision that is ultimately made.
'If we move to a system in which politicians aren't involved at all there will be issues of accountability and legitimacy that would have to be dealt with.'