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Editorial Friday 5 February 2021: Exclusive - Key points and analysis of the Government's new Health White Paper

Publish Date/Time: 
02/05/2021 - 10:17

“The Health and Social Care Act 2012 put a regime in place which put competition as the organising principle for improvement in NHS care. This has in some cases hindered integration between providers. In practice, the NHS has not operated as the market intended by the 2012 Act …

"The NHS England of 2022 is a very different organisation with a significantly different role to the NHS Commissioning Board of 2013 …

"It has become clear that the more ‘hands off’ role for Government with respect to NHS England that was framed in the 2012 Act has not been realised in practice”.

'Hate To Say I Told You So' - The Hives

There are fifteen things that you need to know about the draft of the Government’s Health White Paper, obtained exclusively by Health Policy Insight. (‘Integration And Innovation: Working Together To Improve Health And Social Care For All’ is its working title.)

One - It undoes 2012’s Health And Social Care Act ‘Equity And Excellence: Liberating The NHS’ (for which all Conservative MPs then in Parliament unanimously voted).

Two - It abolishes competition and competitive tendering in the NHS.

Three - It effectively neuters NHS Foundation Trusts, removing their independence from direct control by the Secretary Of State For Health, as well as ending the system for developing them, with the formal abolition of Monitor (known now as NHS Improvement) and the Trust Development Authority.

Four - It unambiguously puts the Secretary Of State For Health back in charge, in a massive political land-grab. This is in charge of both the overall system; of each local Integrated Care Systems; and of the NHS Commissioning Board (known now as NHS England). The Secretary Of State resumes formal powers of direction: for the SOS to have more power in this way, the chief executive of NHS England must of course have less. Ministers get new powers to intervene at any point of an NHS reconfiguration process, with a new process for reconfiguration that will enable the Secretary of State to intervene earlier and enable speedier local decision-making. The SOS gets new powers to transfer functions to and from specified arms-length bodies (ALBs), and the ability to abolish ALBs as a result of doing so. These power to transfer functions and abolish ALBs will be exercisable via a Statutory Instrument (SI) following formal consultation. The Secretary Of State’s revived powers of direction include the ability to mandate NHS England to take on public health functions (which were transferred to local government by the 2012 Act) without annual section 7A agreements.

Five - The annually-set NHS Mandate from the Secretary Of State to NHS Commissioning Board to drive its planning guidance is replaced by a need to always have a Mandate in place. This isn’t a net gain in accountability.

Six - The enormous issue of the workforce shortage looks like being completely ducked. The Secretary Of State will have to “publish a document, once every Parliament, which sets out roles and responsibilities for workforce planning and supply”.

Seven – The issue of capital/backlog maintenance is not even mentioned.

Eight - It repeatedly mentions social care reform. A few changes are set out: a new duty for the Care Quality Commission to assess Local Authorities’ delivery of their adult social care duties, alongside powers for the Secretary of State to intervene and provide support where there is a risk of local authorities’ failing to meet these duties; a tweak to let the SOS make direct funding to social care providers in emergencies (which will not replace the existing funding mechanism); and the creation of a ‘Discharge To Access’ mechanism which could prove consequential. Other than these, this White Paper does nothing about the big issue of social care reform. This Bill merely restates the Government’s promises to bring forth legislation: “we remain committed to wider social care reform, with proposals to be published this year”.

Nine - Integration is the new competition, in the guise of statutory Integrated Care Systems, all of whose members have a legal ‘duty of collaboration’ (which may be not unfamiliar to NHS Foundation Trusts’ legal ‘duty of co-operation’). These legally-mandated ICS will manage local systems, taking on the commissioning functions of CCGs (and some from the NHS Commissioning Board). ICSs will have statutory boards, which means they will be able to hold budgets: NHS England will get an explicit power to set a financial allocation or other financial objectives at a system level. ICSs will be able to apply to the Secretary Of State to create new Trusts to provide integrated care. The national NHS tariff will be altered to support the right financial framework for integration, whilst maintaining the financial rigour and benchmarking that tariff offers. There will be joint committees and joint commissioning. (Mine’s a three-skin, thanks.)

Ten - Data sharing is going to be A Thing. Unfortunately and unreassuringly, the White Paper says very little about how. It says merely “The forthcoming Data Strategy for Health and Care will set out a range of proposals to address cultural, behavioural and legislative barriers to data sharing and a more flexible legislative framework to improve data access and interoperability, including enabling the safe sharing of data in support of individual care, population health and the effective functioning of the system. As part of this work, we are exploring where achieving these objectives may require primary legislation”. Which is nice.

Eleven - It proposes a new Obesity Strategy, which will be to contemplate banning adverts for unhealthy food online and before 9 pm on television.

Twelve - It will extend the scope of professions who can be regulated using the powers in Section 60 of the Health Act 1999. While it states that “there are no plans at this stage to statutorily regulate senior NHS managers and leaders”, this change “would enable this to be brought forward in the future”.

Thirteen - It ends the need for new legislation to remove one of the profession from statutory regulation. Currently, nine regulatory bodies (10 including Social Work England) perform similar regulatory functions in relation to different professions: these regulators will be able to be abolished under secondary legislation.

Fourteen - New national medicines registries will be created under the MHRA

Fifteen - The Secretary Of State For Health gets powers to mandate water fluoridation and intervene on the quality of hospital food, but not on car parking.

Fairy tales
Are you sitting comfortably? Then I’ll begin.

Once upon a time, there was a fairy-tale called ‘Equity And Excellence: Liberating the NHS’.

This was the Tale Of Lord Andrew Lansley. Our pause-prone hero wanted to make the NHS free from the evils of Government. If it were set free in Lord Andrew’s scheme, then it would surely be perfect. Only Lord Andrew’s solution could do this: its recipe took one-part patient choice; one-part clinical commissioning; and one-part competition. Swallow them down in one big gulp!

And with that one Act, the NHS was free! Free and perfect!

And they all lived happily ever after.

Only they didn’t. There was no money for competition: the wicked Sheriff Osborne of Tatton had eaten it all, and so there was no patient choice. And clinical commissioning, which Sir Andrew thought to be a Unicorn, turned out to be a lame mule with an empty milk-shake cup taped to its forehead.

Seven quick observations on the draft White Paper
One
- These reforms place huge and unwarranted faith in national-level intervention by the Secretary Of State For Health But Social Care.

It is impossible to look at the performance of ‘NHS’ Test And Trace, or the POE procurement scandals, which were constituted in this way and under the SOS/DHBSC aegis, and conclude that this is a good idea.

Two - The ‘duty to collaborate’ will be whatever the SOS says it is.

Three - FTs’ freedoms are effectively abolished. Is this well-justified?

Four - These proposals say that patient choice will be maintained and strengthened, but there is no evidence of how. “Integrated services provide an opportunity to offer joined up care to all and provide clear information on the choices people have in how and where their care is delivered. A patient’s right to choose where and who will provide their health and care needs will be preserved and strengthened in the new system arrangements.

“The NHS’s Long-Term Plan (LTP) makes specific proposals to strengthen patient choice and control, including the roll out of personal health budgets. The LTP states that the ability of patients to choose where they have their treatment remains a powerful tool for delivering improved waiting times and patient experiences of care. The LTP also states that the NHS will continue to provide patients with a wide choice of options for quick elective care, including making use of available Independent Sector capacity. The protections and rights in relation to patient choice and the AQP (Any Qualified Provider) requirements are fundamentally set out in the current legislation.

“As part of the wider package of changes to procurement policy, we propose to repeal section 75 of the Health and Social Care Act 2012 Act including the Procurement, Patient Choice and Competition Regulations 2013 and replace the powers in primary legislation under which they are made with a new procurement regime. Under the new model, bodies that arrange NHS Services as the decision-making bodies will be required to protect, promote and facilitate patients choice with respect to services or treatment. We also want to make clearer the rules, circumstances and processes around the operation of Any Qualified Provider (AQP)”`.

This is more than aspirational: it is fanciful.

Five - New NHS trusts can be created on SOS’s whim – but how will they be funded in revenue and capital terms?

Six - Top-down NHS redisorganisations are dead: long live top-down NHS redisorganisations.

Seven - We will never really know if NHS independence was effective: it is impossible meaningfully to separate the performance of the NHS Commissioning Board from the two powerful and politically-savvy individuals (Sir David Nicholson and Sir Simon Stevens) who ran it while it was independent.