The Integrator: What will NHS legislation unleash?

What will the prospect of major health legislation unleash? Where will it take the NHS?

The debate starts quietly with a Commons health committee inquiry in the shadow of Brexit, designed to test appetites and help build the case for change, after NHS England published its proposals.

Written evidence has been published from quite a few agencies, interest groups, think tanks and individuals, and offers some clues to where this might go.

There is a general tone of nodding agreement with the overall intention but the common themes, finer observations and major notes of discord are more useful.

The very important context is that this is a long game and we could well see general elections and new prime ministers before it’s over. NHS England itself has said no legal change could come into force for three years, at the very earliest.

Snowballing

Way back when legal changes were considered in 2017, I discussed how starting to pull on one or two threads of the 2012 Health Bill might lead unavoidably to unravelling the rest, and a major redisorganisation.

NHS England people have indicated they will avoid this with the “surgical” and “targeted” changes proposed. And several of the respondents to the committee are keen on avoiding sweeping organisational change.

On the other hand, there are already signs in the responses of how the exercise could snowball into something even more far reaching.

Several note that the proposals for developing joint working – ie: developing integrated care systems – will leave a messy and murky landscape with uncertain governance and accountability. The Health Foundation warns: “The risk is that one set of complex and confusing rules is replaced with another.”

The Shelford Group points out that the proposals “essentially sustain the existence of local commissioning organisations (CCGs) in a future model where local care moves away from a contractual and competitive model to a more holistic approach to delivery for a local population”. The Shelford teaching trust titans favour “a more fundamental review of the purpose of CCGs”.

And Unison warns: “Concerns are likely to persist within the system about the accountability and governance of integrated care systems while they… remain non-statutory bodies, as suggested in the consultation, and with little direction over how they should be constituted.”

It’s not hard to imagine a future government being tempted to go the whole hog and put ICS on a proper footing as an autonomous local/regional tier, and the Nuffield Trust provides another excuse: “Because the ICS is not a statutory constituted body but a partnership very dependent on functional relationships, with some potential to mark its own homework, there will be a temptation for NHS England and its regional teams to call in decisions to an even higher level.”

Meanwhile the Health Foundation questions whether the objective of weakening competition rules and regulation can really be achieved without “making wider policy changes such as bringing foundation trusts back under direct government control”.

Both NHS Providers and the NHS Confederation oppose moves to allow NHS Improvement to force foundation trusts to merge, and to control FTs’ capital spending – part of what they see as a centralisation of power throughout the proposals. But Unison, whose line of thought might be favoured under a Labour administration, is very pleased about them.

Competition

Where is the NHS going on competition, always the most incendiary issue and one getting a bit of attention even in the shade of Brexit?

The fevered debate means policy statements can more than ever be unwieldy blunt instruments; so already – years away from legal change – decision makers will be delaying and moving away from competitive processes (even if not as quickly as some would wish).

This has already impacted areas where procurement and competition might actually be useful – commissioning support in some parts of the country is an example – as well as those where it is better left alone. Meanwhile, Labour can use any example of private involvement to argue government is out of kilter with NHS England’s legislation proposals. 

Few respondents question the desire to remove competition and merger rules and regulation. The Competition and Markets Authority itself – despite its recent incendiary research linking reduced hospital competition to death and harm – does not appear up for a fight, opting not to make a clear case for its current role in mergers and pricing.

There is some nuance in the evidence, with both the Nuffield Trust and Health Foundation raising the issue of patient choice, and Andrew Taylor, who was director of the NHS’ first competition regulator, the Cooperation and Competition Panel, states: “NHS England’s proposals take away an important means for enforcing patients’ rights (i.e. by making a complaint to NHS Improvement and having this investigated).”

It’s clear that a huge battleground if NHS England’s ideas are taken forward will be the detail of the proposed “best value test” for deciding when competition should be used. Among those indicating strong views on how this should take shape include the British Medical Association and Unison. The Royal College of Midwives’ “preference would be for the inclusion of an explicit statement in support of awarding contracts to NHS providers”, while the Independent Healthcare Providers Network thinks axing procurement regulation will “considerably reduce accountability for securing value for taxpayer spend with decisions taken in the interests of providers and not patients”.

Staffing

The many health unions and professional organisations can between them normally make a big noise in a major health debate and, workforce policy being an absolute mess at present, they have a clear case right now.

The Royal College of Physicians says: “A key opportunity to clarify roles and responsibilities for workforce planning is being missed… there must be national oversight and resource to help create a sustainable workforce which can meet the needs of patients.”

The Royal College of Nursing and Unison call for a range of measures they believe will promote “safe staffing”, particularly promoting nursing numbers.

A few respondents spot and object to the (intentionally?) wacky idea of giving the health secretary rather autocratic “new powers… to transfer, or require delegation of, [arm’s-length body] functions to other ALBs, and create new functions of ALBs”.

Local government

A fulsome role for councils (and, with that, social care and public health) is often a glaring omission from NHS reform plans – authors of the legislation proposals at NHS England might argue they are already risking ultra vires without trying to overhaul local government too.

But to promote integration, failure to involve and persuade councils is a problem, as several respondents point out, and it is bound to be part of the debate.

Notably the Department of Health and Social Care itself states, with its own bold: “We are keen to hear views from wider stakeholders, especially local government, as they are critical partners in delivering the better outcomes envisaged by the long-term plan, and government is clear that legislation will only be pursued if it has buy-in from across the NHS and its delivery partners.”

The Local Government Association seems lukewarm to say the least: “The lack of recognition that the NHS increasingly operates within a complex system involving local government, voluntary and community services and private and independent providers, public health etc. means that there is inadequate consideration of what impact changes to the legal framework for the NHS will have on system-wide working with other partners.

“In particular, measures to enable greater collaboration between NHS and other partners, including local government, in our view, are not given adequate consideration.”

Recent experience suggests though that, when push comes to shove, councils’ views won’t be decisive.

Rule breakers not rule makers

Both the Health Foundation and Nuffield Trust note that while the direction is to throw out some of the big incentives for NHS change – particularly competition and autonomous FT status – they are not being replaced with anything else.

The Nuffield Trust says: “There is [now] little by way of support for providers except in primary care, with training and capital budgets cut and little central support for learning and development. There will be hierarchical challenge but gone are the incentives around earned autonomy that the foundation trust regime sought. The localist and competitive challenge is considerably weakened as the lines are blurred between commissioner and provider, the foundation trust model effectively abandoned, and there is a move away from payment based on volume of care.

“So what is supposed to encourage and incentivise services to improve in this new system – and will it be enough?”

There are also warnings that new law and restructures won’t do a lot to integrate services. But if the NHS can’t find ways to make improvements under the current mashed-up arrangements, the reasons will pile up to take the leap with more even sweeping, but potentially more coherent, structural change.