Editor's blog Monday 27 June 2011: The Health And Social Care Bill has jumped the shark

The gift of prophecy isn’t what it used to be.

When I composed ‘The Simon Burns 4 SOS Campaign Song’, I wrote the lyric “With a Bill to sell that no-one seems to want / Change the title and the font”.

And now it seems DH have taken me at my word.


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Click here for details of 'The hair apparent: Health Bill amendments eschew promoting competition; instead favour preventing anti-competition', the new issue of subscription-based Health Policy Intelligence.

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Such is the power of the SimonBurns4SOS campaign: even our whimsy becomes proposed health policy. I shall have to joke more cautiously in future.

This could be too much power for one man to hold … and maybe it will prove to be so.

But I have faith in Simon Burns. We have had a Liberator, and next must be the Redeemer.

In Simon we trust.

Where was I? Ah, yes, the Amendments to the Health Bill reforms, which HSJtoday revealed are incomplete, and more fun is set to follow.

According to HSJ's source, the Government proposes to bring these next amendments in at the Bill’s report stage. So it’s a good thing they’re not about anything important like a failure regime and designated services.

Oh …

The "substantive" amendments are broadly noticeable by their absence. Instead of Monitor previously having a primary duty to promote competition, now ”Monitor must exercise its functions with a view to preventing anti-competitive behaviour in the provision of health care services for the purposes of the NHS which is against the interests of people who use such services”.

Do you see what they did there?

Goodbye promoting competition; hello preventing anti-competition. Cunning.

Amendments 178 also helps nicely with a definition: ”“Anti-competitive behaviour” means behaviour which would (or would be likely to) prevent, restrict or distort competition and a reference to preventing anticompetitive behaviour includes a reference to eliminating or reducing the effects (or potential effects) of the behaviour”.

Another competition which caused a bit of popular concern was competition on price (which of course exists already for the non-tariff 40% of the NHS activity). Amendment 120 of clause 116 means rules “may” allow price competition. Amendment 122 echoes the “may” in instances where competition on price is to be found.

A brief note on reading Bills
Here is a thing about legislation: you have to look carefully for the language.

“Must” and “shall” are meaningful bits. “May” is a possibility but not a requirement: it is used to delineate what is not forbidden.

If you want really weak emphasis, you get “with a view to” – which sounds rather like a hotel room. Equally vacuous is “promote” (even when given the slightly serious-seeming “duty to promote”, as in Amendments 55, 58, 62 and 64 – there is no significant force here. These vague terms occur a lot in the ‘reassurance’ changes on offer.

The proposed new 'right to provide' for extant NHS staff who set up new social enterprises etc, discussed in the Government’s repsponse to the NHS Future Forum is notable by its absence, which is just as well because Amendment 22 does not permit the favouring of any one sector over another.

Likewise notable by its complete absence is any intention to put the NHS Co-Operation and Competition Panel on a statutory basis, also much mentioned. The Principles and Rules for Competition are likewise striking by their lack of mention.

This iteration is slightly clearer about the accountability being explicitly with the Secretary Of State (which is of course a major thing Lansley's original vision was trying to get away from).

The public good?
Anther promise was that commissioning consortia board would meet in public. Amendment 51 says consortia should meet in public: however, ”The provision made under sub-paragraph (3) must include provision for meetings of governing bodies to be open to the public, except where the consortium considers that it would not be in the public interest to permit members of the public to attend a meeting or part of a meeting”.

Ahem.

Likewise, the promise to put the hospital doctor and nurse on commissioning consortia boards was made, but appears in the proposed Amendments as a ”regulations may”, which is not binding.

Again, ahem.

Duty calls – or does it?
The duty to promote the NHS Constitution is, as I have frequently pointed out, quite pointless since that document has no legal force and is all "must have regard to".

The duty to promote integration is left to commmissioning consortia's own definitions under Amendment 64: “14OC Duty as to promoting integration
(1) Each commissioning consortium must exercise its functions with a view to securing that health services are provided in an integrated way where it considers that this would—
(a) improve the quality of those services (including the outcomes that are achieved from their provision),
(b) reduce inequalities between persons with respect to their ability to access those services, or
(c) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services”.

Similar is true of Monitor's integration duty, at Amendment 96: "Monitor must exercise its functions with a view to enabling health care services provided for the purposes of the NHS to be provided in an integrated way where it considers that this would—
(a) improve the quality of those services (including the outcomes that are achieved from their provision) or the efficiency of their provision,
(b) reduce inequalities between persons with respect to their ability to access those services, or
(c) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services".

Other notable aspects?

Amendment 36 on financial carry-over looks worthy of attention.

Amendment 45 re-invents all the burdensome governance aspects of PCTs.

Amendment 77 looks fun with its permission to let any consortium decide for itself if it “revises the plan in a way which it considers to be significant”.

Amendment 86 promises further freedom from top-down bureaucracy as the NHS Commissioning Board “must consult” each Health And Wellbeing Board on consortia’s performance to their plans, as part of the NHSCB’s performance assessment. (Which we might as well just come out and call World-Class Commissioning, no?)

Amendment 92 leaves all the mechanism in place to permit quality premium payments, despite Comrade Sir David’s cautious words on the matter to The Commissioning Show recently.

Jumping the shark
Ladies and gentlemen, the Health And Social Care Bill has just performed a manoeuvre known as jumping the shark.