With the rejection of local restructuring proposals raising eyebrows, will the independent reconfiguration panel and overview and scrutiny committees fill the democratic deficit?

The currently raging epidemic of reconfiguration - institutional bird flu - raises questions not only about the future shape of the NHS in England but also about its governance. Carrying out a reconnaissance of the machinery for scrutinising proposals for change on behalf of the Nuffield Trust, we were struck in particular by two sets of questions.

First, do ministers want to insulate themselves from refereeing local reconfiguration disputes? They have invented machinery for so doing, but how are they using it?

Second, how do national and local politics mesh, if indeed they do? They have introduced local authority scrutiny of the NHS - local democracy in action, as it were - but how far do local voices carry?

Taking our first issue, consider the role of the independent external panel set up by the government to advise ministers on proposals for reconfiguring primary care trusts. Headed by Michael O'Higgins, now chair of the Audit Commission, this was very much an 'expert', technocratic body. It provided a perfect opportunity for ministers to insulate themselves from the local politics of reconfiguration.

In the event, the O'Higgins panel overwhelmingly endorsed the proposals put forward by the strategic health authorities, disagreeing with only two out of 23 recommendations. It advised accordingly. But health secretary Patricia Hewitt chose to go her own way. In eight out of the 21 cases where the panel had endorsed SHA recommendations, she came to a different decision. In every instance, the number of proposed PCTs was increased in response to intense lobbying from local MPs - former health secretary Alan Milburn among them - and others.

One possible conclusion is that politics - in the pejorative sense of toadying to partisan interests and avoiding all risk of losing votes - will always trump independent advice, however well based and argued. However, there is another way of looking at this episode. The proposals for reconfiguring PCTs had to be assessed against a set of six criteria that did not necessarily point in the same direction.

No technical fix

So, for example, one criterion was that the SHA proposal should enhance PCTs' capacity to improve public involvement.

Another was that it should enhance effective use of resources. But while the former might suggest keeping PCTs small, the latter might argue for large, powerful PCTs. In choosing between two desirable policy goals at odds with each other, both set by the government, there is no technical fix.

On this interpretation, politics will also overcome expert advice. Ms Hewitt may or may not have been influenced by cynical calculations about the strengths of lobbies or votes at risk. But there were also perfectly respectable reasons for departing from experts' recommendations in this case, as in all cases where a judgment has to be made on the weighting given to different, often incompatible goals.

This suggests a more general conclusion. This is that much of the rhetoric about 'taking the politics out of the NHS' is just that: loose talk that ignores the reality of decision-making in a complex organisation with multiple claims on its resources and a variety of criteria for success.

Expert advice can analyse evidence, clarify choices, identify the risks and sometimes quantify the costs. But it is politicians who determine the goals, incompatible or otherwise, and draw up the final balance sheet.

It is too early to judge whether the story of the O'Higgins panel will be repeated in the case of the independent reconfiguration panel: another potential political insulator for ministers.

The panel's role is to advise the health secretary on reconfiguration proposals to which local authority OSCs object. Its nine members are chosen to provide an equal balance of clinical, managerial and patient and citizen representation.

However, reference to the panel is discretionary: the health secretary can either decide such cases herself or refer them to the panel. And so far discretion has been used to restrict the panel's role.

Reluctant to delegate

From October 2004 to October 2006, OSCs referred 17 proposals for change to the health secretary. In the majority of cases, the Department of Health supported the local NHS proposals. Just three were referred to the panel, which was asked to act as broker in one further instance.

So once again it would seem ministers are reluctant to delegate responsibility to a neutral, expert body, although there are signs that this may be changing as the number of contested proposals increases.

Given an absence of data about the number of reconfiguration proposals in the pipeline, we do not know whether the number of contested cases has remained constant or whether it reflects a growing propensity on the part of OSCs to object.

But our reconnaissance certainly suggests that at least some committees are getting more confident in challenging NHS plans and cross-examining the evidence. Which brings us to our second theme: the relationship between the exercise of local voice and the reality of central power.

It was the NHS plan which in 2000 announced that the 'power to refer major planned changes in local NHS services to the health secretary will transfer from unelected community health councils to the all-party scrutiny committees of elected local authorities'.

In the new model the patient voice would be articulated through patients' forums and the patient advice and liaison service, while the public voice would be represented by local authority scrutiny committees. Exit community health councils, enter OSCs.

The model has since changed. But OSCs have survived.

A definitive verdict on them awaits the final report of a Manchester University team commissioned to evaluate their all-round performance in negotiating with local trusts about the development of services, as well as challenging proposals for change.

Local scrutiny beginning to bite

But although the scrutiny of NHS changes represents only part of OSC activity, it has certainly advertised their existence. The evidence of our reconnaissance - examining OSC reports on the web and interviewing participants in reconfiguration controversies - suggests that local scrutiny is beginning to bite.

Variation is the norm in the case of OSCs, as in the NHS more generally. Much depends on the skills of the chair, the extent of professional support given to OSCs by their local authorities and their ability to call on analytic expertise.

There is a mix of populists and pragmatists. The former react to reconfiguration proposals with knee-jerk hostility; the latter start from a recognition that dealing with local NHS problems should be a joint enterprise.

In some instances, OSC opposition to change reflects 'professional capture'. the mobilisation of protest by doctors and nurses, rather than spontaneous public opinion. In other instances, OSC opposition reflects scepticism about the competence of the NHS bodies involved and mistrust of their motives: will the promised improvements in the quality of services actually materialise or will they be swept aside by yet another financial crisis?

The effectiveness of consultation has to be measured not by the number of pamphlets or meetings but by the willingness to engage in argument, explanation and discussion. Optimism about the likely benefits of change is unlikely to convince unless there is also honesty about the risks.

So contrary to some expectations, OSCs do have the potential to be effective in questioning the performance of the local NHS. It is a role that is likely to become more challenging - but perhaps also more frustrating - as PCTs become more central, commissioning on behalf of their local populations.

It is after all OSCs, not PCT members, that are elected by their population. So could local government scrutiny be the answer to the NHS's perceived local democratic deficit?

Cautious welcome

The answer must be that OSCs offer, at best, a partial solution. They can compel local PCTs to give an account of, and to justify, their policies. And accountability-as-transparency is important.

But if PCTs fail to explain that they have to follow national priorities - and tough luck if these clash with local priorities - there is nothing OSCs can do. The power of the purse trumps local voices.

If the rhetoric about power to the periphery or local democracy in the NHS is ever to get in touch with reality, we may have to think radically about how PCTs should be financed and how much independence they should have. It could be a long wait. -

Patricia Day is a senior research fellow and Rudolf Klein is professor of social policy at the Bath University.
To download a.full version of their report for the Nuffield Trust, click here.