Guest editorial Wednesday 15 February 2012: Deconstructing #SimonBurns4SOS's 10 reasons why we need a Health Bill

Regular readers of Health Policy Insight will be familiar with our longstanding campaign to see him replace Mr Lansley as Secretary Of State For Health, which has its own Twitter hashtag: #SimonBurns4SOS.

Scandalously, Irwin Brown of the Socialist Health Association has dared to disparage a ‘ten reasons why we need legislation’ piece by The Legendary #SimonBurns4SOS.

Health Minister Burns’ immortal prose is in bold, with Brown’s disrespectful Fiskings between each section.

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Click here for details of 'PM Cameron - Mr Lansley's "as one" or assassin?', the new issue of subscription-based Health Policy Intelligence.

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Many people have said that we don’t need legislation to make the changes we’re proposing for the NHS. But we don’t believe we can deliver change on the scale we need without making changes to the law. Here are some of the reasons why.

One of those saying we did not need legislation was the Secretary of State himself, Mr Lansley, who said 95% of the changes did not require it.  Instead we have 305 Clauses, 24 Schedules and over 2,000 amendments so far.

1. If we want to reduce bureaucracy and management costs, then we need legislation. The Bill gets rid of two layers of management in primary care trusts and strategic health authorities. The reforms will save £4.5 billion over the lifetime of this Parliament, which will be reinvested in healthcare.

This is obviously not true, as major savings in management costs are already being made under the current legislation.  The reductions in the number of SHAs and number of PCTs brought the savings without any legislation.  The provisions in the Bill are not law and will not have any effect until 2013 even if the Bill is passed so it cannot be the Bill driving the savings.

The Bill provisions greatly increase the number of commissioners, increase the number of providers, increase the range and complexity of tariffs and introduce much more complicated contracting arrangements. The bill is guaranteed to increase transactions costs – but no estimate has been made of this burden.

2. If we want to give doctors and nurses significantly more power than they have now to provide care for their patients, then we have to change the law. Of course, without a Bill, we can ask the managers who run primary care trusts and decide how NHS money is spent to involve doctors and nurses. But without the Bill, doctors and nurses will always run the risk of having their decisions second-guessed by the managers running these organisations. We know this because we’ve tried before to give health professionals a greater say in the decisions made by primary care trusts, and it simply didn’t work.

Under the Bill, both Regulations and guidance by the National Commissioning Board will be imposed on CCGs and enforced.  This is no different to the current positions in which commissioners have to follow national principles and rules.

Large amounts of commissioning, estimated to be initially over 50%, will be done by an unaccountable quango, the NHS Commissioning Board – not by doctors and nurses.

3. Most people agree that local authorities, because they’re also in charge of schools, town planning, transport and housing, should also be in charge of public health. But we can’t do this without changing the law. Without the Bill, we can’t transfer powers or money from the NHS to local authorities – they won’t be able to play their full role on public health.

Local authorities are to get only 40% of the public health responsibilities.  The current framework does allow local authorities to act on behalf of the NHS, and there is ample scope for funding flexibilities.

4. Most people agree the health and wellbeing boards – which bring together local people and key local services – are a great idea. But without the Bill, they won’t have any power. They’ll be able to give advice about the health needs of the local population, but no one will be obliged to take any notice.

They do not have any power under the Bill.  They produce the strategic needs assessment - but they do that now.  They are only consultative bodies, with no funding to allocate and no powers to hold CCGs to account for commissioning.

5. We need this to Bill prevent discrimination in favour of private health companies over the NHS – it’s the first piece of legislation to do this.

Even if the Bill achieves this, which is doubtful, this can be prevented now, since there is power to make appropriate Regulations, which, as a Minister should know, are binding on commissioners.  The Government has used this existing power to force PCTs to commission more services through any qualified provider: three last year; more this year.

6. Most people agree that we should give more power to patients – that they should have more choice and be much more involved in decisions about their care. But it’s this Bill that makes that explicit in law. So if you have cancer, and you want a say in what treatment you have, wherever you live, whoever your GP is, your views and preferences have to be taken into account when deciding your care and treatment – no decision can be made about you without you.

The Bill does not give any more rights than currently exist.  The NHS Constitution sets expectations and all NHS bodies must have regard to the constitution.  There is no right of involvement in decision-making.  This is a fiction.

7. For decades, governments have tried to reduce the health gap between rich and poor. But in many areas, the gap is getting wider. A man born in Blackpool will still die 11 years earlier than a man born in Kensington and Chelsea. The Bill puts in law for the first time a duty on the NHS and local government to tackle health inequality.

It is debatable whether putting these duties in the Bill will be any more effective than use of operating frameworks, service frameworks, regulations and directions that have been used in the past.  Just having a duty is hardly enough – the policy framework set by the Bill will tend to widen inequalities.

8. Many governments have tried unsuccessfully to integrate health and social care services. But in most parts of the country, it’s still not happening. The Bill places a duty on key organisations to integrate health and social care services.

Without a meaningful definition of what integration means, this is just rhetoric. On its own, this duty has no meaning.

9. Currently, patients do not have a very strong voice in the system. But through HealthWatch, they will have a hotline to the Care Quality Commission and the NHS Commissioning Board. If a group of people say there are serious problems at a particular hospital, but they’re being ignored by the local trust, through HealthWatch, they will be able to take their concerns directly to the Care Quality Commission.

Time will tell. It is possible to set HealthWatch up as a special health authority and local organisations could be accommodated within current legislation by agreement with local authorities as hosts.  

10. As 52 NHS medical directors and chief executives have pointed out, without the Bill, many NHS trusts will have to shelve their plans for future improvements to patient care. The Bill changes the current arbitrary private patient cap that stifles the development of groundbreaking new treatments by the likes of Great Ormond Street and the Royal Marsden that NHS patients will benefit from.

This is not true.  This affects a tiny minority of trusts, and is one of the few areas where there is general agreement that a modest change in legislation is required.  The consequences of the change in the Bill go way beyond just this aspect and a complete freedom of all NHS bodies to treat as many private patients as possible is not the same as having more freedom for a few to try new treatments.