Exclusive: Regulator may get powers to force FTs to merge

The proposal has formed part of advanced discussions about what legal changes national NHS leaders may seek as part of the forthcoming NHS long-term plan.

HSJ understands it would give NHS Improvement the ability to direct NHS providers to collaborate with each other, including directing them to merge.

NHSI already has extensive powers to direct NHS trusts, but little sway over foundation trusts, which have much more legal independence. The proposed change would likely allow it to direct both types of organisations in a similar way.

It is understood the new powers under consideration would also give NHSI more control over foundation trust board appointments and capital spending.

It could represent a substantial curb on the legal freedoms which are core to the foundation trust model created in the 2000s.

There are currently nearly 250 independent NHS providers, most running acute hospital services but also mental health, community and specialist care. Around 150 are foundation trusts, many of which have severe financial and care quality problems.

Merging trusts is often controversial and opposed by some of trusts’ boards, staff, and local communities and politicians.

NHSI chief Ian Dalton has indicated more collaboration and merger is needed, stating at the NHS Providers conference this year: ”We want to see cooperative, standardised care being delivered: it might be in the form of groups, it might be about continuing (or accelerating) the trend of organisations coming together.

“This will place even more importance on having strong provider organisations with strong boards – able to take accountability not just for the quality of the care they provide directly for patients, but for wider system outcomes.”

Others, however, argue that merger is a distraction or will only succeed if it is voluntary for trusts.  

In June, the prime minister said she would consider proposals for legislation if put forward by the NHS. Since then, NHS England has indicated it was likely to recommend several changes.

It is not clear whether the proposals will feature in the long-term plan, due to be published before Christmas, or whether they will be pursued separately next year, potentially led by government.

It remains unclear whether Parliament would pass any legislation and when.

HSJ has previously reported NHS England is likely to ask for the withdrawal of the Competitions and Market Authority’s role in approving NHS merger and acquisition – this is also aimed at encouraging and speeding up the process.

Other legal asks known to have been part of advanced discussions in relation to the long-term plan include:

• Making it easier to delegate commissioning roles from NHS England to local organisations, to joint committees working across large patches, and to providers;
• Changing procurement rules so commissioners do not feel they have to tender for clinical services and can more easily choose their preferred provider;
• Giving clearer duties to NHS organisations, particularly foundation trusts, to integrate and collaborate; and
• Creating integrated care trusts.

NHSI highlighted Mr Dalton’s to the NHS Providers conference about collaboration and merger.

NHSE was also approached for comment.