Health and Social Care Bill

Memorandum submitted by Royal College of Physician’s (HS 102)

The Royal College of Physicians (RCP) plays a leading role in the delivery of high quality patient care by setting standards of medical practice and promoting clinical excellence. We provide physicians in the United Kingdom and overseas with education, training and support throughout their careers. As an independent body representing over 25,000 fellows and members worldwide, we advise and work with government, the public, patients and other professions to improve health and healthcare.

Summary

The RCP has a well established role in promoting quality. We are making our recommendations with a view to maximise the best results for patients. We make 14 recommendations in this paper, recommendations 2, 3, 5, possibly 9 and 10 would require amendments to the Bill, the remainder call for clarity and further guidance from the Department of Health. Our recommendations are as follows:

To enshrine quality at the heart of the reforms:

1. At a national level the NHS Commissioning Board is responsible for setting the standards for consortia. The medical royal colleges are well placed to offer advice on these standards and should be central to the governance of the commissioning board.

To enable clinician-led commissioning that draws from the full variety of specialists and wider health professionals the RCP is calling for:

2. A tighter requirement for consortia and the national NHS Commissioning Board to involve practising specialists, public health and social care professionals at the highest levels of commissioning decision making. We believe this is crucial to the success of commissioning and should be on the face of the Bill, and would therefore require an amendment (clauses 19 and 22).

3. The national NHS Commissioning Board’s duty to encourage integrated working currently includes consortia and local authorities. This should be expanded to include hospital based specialists, with explicit reference to encouraging integration across primary and secondary care (clause 19, insertion13J). A similar duty to integrate should be placed on consortia (clause 22).

4. Guiding principles for specialist involvement, including public health doctors, should be laid out in accompanying guidance documents. This would ensure all consortia adhere to the same general principles for commissioning, without being too prescriptive on consortia’s ability to find locally appropriate mechanisms. The RCP believes these guiding principles will promote integrated care.

To ensure services do not fragment and quality and integration are not at the expense of competition and are enshrined in the commissioning and providing of services the RCP recommends:

5. Monitor’s role is amended to promote competition on quality. They should be given the responsibility to grade providers on quality and disseminate this information to commissioners. This should be reflected in the Bill and would require an amendment (clause 52).

6. Work to identify quality measures and how consortia will be assessed against these metrics commences now. Due to the RCP’s well established role in setting standards we should be central to this process.

7. A ‘best practice tariff’ which would reflect the cost of delivering a good service that is value for money and based on quality outcomes.

8. Further clarity to ensure inherent conflicts of interest does not prevent integrated working.

9. ‘Commercial sensitivities’ are not allowed to block information sharing, transparency, accountability. This may need to be on the face of the Bill.

10. The considerations that Monitor must make when carrying out its functions should be extended to include consideration to the overriding principles of collaboration, integration and sustainability when licensing providers (clause 54).

11. Further guidance from the Department on how the designation of services (clause 69)will work in practice

12. Clarity on the process for service reconfiguration including, for example, further detail on accountability and community involvement in the decision-making process.

13. Include how whistleblowing will be supported in the constitution of the national commissioning board and local consortia. Monitor and CQC should also state how it will support the raising of concerns regarding poor standards of care.

14. A vision on how services for rare and uncommon conditions will be commissioned is required. We would recommend the national board, using a sub-national structure, assumes responsibility.

Introduction

The Royal College of Physicians (RCP) welcomes the opportunity to submit written evidence to the Health and Social Care Bill Committee, which builds on our oral evidence. We value the opportunity to provide further evidence on how the new arrangements for commissioning, laid out in Equality and Excellence, can maximise the best results for patients.

The RCP is in a powerful position to help improve commissioning and standards overall. No other body offers such a full range of evidence based quality guidance; we perform audits, issue clinical guidance, conduct clinical effectiveness studies, provide accreditation and write clinical pathways. The medical royal colleges are well placed to offer advice on quality and standards. The RCP believes we should be at the heart of national commissioning decisions, advising the NHS Commissioning Board on how to raise quality throughout the NHS in England.

One of the underpinning principles of the reforms to the health service in England is the aim to put both patients and clinicians at the heart of commissioning. The RCP fully supports this; we believe it will result in better patient care. However, we are concerned that some of the arrangements that are expected to deliver this remain too loose and there is a danger this vision will not be achieved. In our evidence laid out below, the RCP provides details on how we believe this risk can be mitigated and the vision of effective commissioning can be achieved. Further, the RCP has some concerns that under the proposals as they stand, competition could be at the expense of quality, collaboration and integration. We have proposed some safeguards to prevent this.

Integrating the full range of clinical expertise into commissioning

The government clearly wants all healthcare professionals to work together to deliver effective commissioning. The government’s response to the Health Select Committee’s recent Commissioning Report [1] states, ‘The GP practice and registered patient list will be the building blocks of commissioning consortia, but successful commissioning will clearly also be dependent on the wider involvement of other health and care professionals.’ The RCP, along with other medical royal colleges, supports ‘teams without walls’, an integrated model of care, where professionals from primary and secondary care work together across traditional health boundaries, to manage patients using care pathways designed by local clinicians. [2] Additionally, the BMA believes that successful commissioning can only be achieved with GPs, secondary and tertiary care consultants working together. [3] We would all like to see ‘commissioning without walls’ and are therefore pleased to see that the government’s intention reflects a model of care that we have been advocating for some time.

However, the RCP fears that there may be some distance between rhetoric and reality, which could threaten achieving the best outcomes for patients. To achieve the best commissioning arrangements for patients, which draws from the expertise of specialists and other healthcare professionals, the RCP is calling for:

· Amendments to the Bill that would

o strengthen the duty in the Bill to involve a full range of health professionals when commissioning (clause 19 and 22) and

o hospital specialists and public health doctors to be included with local authorities and consortia in the duty to integrate services (clause 19, insertion 13J).

· Guiding principles which will facilitate effective clinician led commissioning to be developed which will support the policy intentions in the white paper Equity and Excellence.

A tighter requirement in the Bill for commissioners to involve a full range of health professionals

The RCP is strongly advocating for the highest level of commissioning decision making to involve the expertise of the full range of healthcare professionals. There is much consensus from the government, [4] the Health Select Committee [5] , the opposition [6] that effective commissioning would require this. At present, however, the provisions in the Bill are too loose, meaning efficacy will often depend upon local relationships.

The Health and Social Care Bill Committee discussed specialist involvement in commissioning on 3 March when amendments 113 and 114 in clause 19 were debated. As the RCP understands it, the aim of these amendments was to ensure that commissioners, both in the national board and local consortia, have a duty to obtain expert guidance on the conditions that they are commissioning services for – in practice it would be legally mandated for an oncologist to be consulted when commissioning services for cancer patients. Although the RCP supports this aim, we understand that it would be difficult to single out particular experts that should be involved in commissioning to sit on the face of the Bill. The RCP would not want large specialties being favoured over small, which could be an unintended consequence of these amendments.

That said, the RCP believes that the current duty in the Bill for both consortia and the national Board to obtain appropriate advice when commissioning (clauses 19 and 22) should be strengthened to be a duty to involve specialists. As it stands, we fear that the duty to obtain appropriate advice may become a tick box exercise, which has the potential to damage patient care. The RCP will be submitting an amendment to the Bill once it reaches Committee Stage in the House of Lords with the aim of strengthening this clause. We strongly believe that the best results for patients depend on specialists and public health doctors being involved at the highest level of governance in consortia. In practice, we would like to see all consortia being required to have a board where specialists sit to input into commissioning decisions.

To achieve effective commissioning across the country, the RCP believes that greater responsibility could be placed on the NHS Commissioning Board to promote specialist involvement and integrated working across primary, secondary, tertiary and social care. This should be reflected in the Board’s duty to encourage integrated working (clause 19, insertion 13J), which currently references only consortia and local authorities. The RCP would like this clause to reflect the need for specialists to be involved in the delivery of seamless patient pathways and recommends hospital specialists be referenced on the face of the Bill.

Guiding principles for effective clinician-led commissioning and integrated care

The RCP has proposed two amendments above to strengthen specialists’ involvement in commissioning. We believe that effective commissioning will also require guidelines from the Department of Health that compliment the Bill, but do not require amendments. The RCP expects local solutions to commissioning to evolve over time. There are some principles for successful commissioning, however, that are applicable across all localities. We recommend these to be maintained by the NHS Commissioning Board and cascaded to local consortia in advance of them taking responsibility for commissioning from PCTs in April 2013. The general principles we recommend for commissioning are as follows:

a. There should be transparency on how a full range of health professionals will be involved in commissioning. We believe this will strengthen accountability of consortia to their local populations. Each consortium should publish information on how they will involve and have involved specialists in their annual plan, annual report and constitution. The Board should assess the extent to which consortia have collaborated with other professionals and integrated primary, secondary and social care and public health in their annual assessment.

b. Strong professional networks to further enable a wider range of specialists to feed into commissioning decisions should be established and developed. Existing cancer and cardiac networks provide models from which best practice can be drawn. A network of the appropriate specialists should always be involved in commissioning decision that affects the services they provide.

c. Patients and communities should be empowered and enabled to be fully involved in commissioning decisions of both consortia and the national board. We are consulting with our Patient and Carer Network on effective structures that would enable meaningful involvement from these groups.

d. Consortia will be responsible for a significant amount of public money. They should be accountable and transparent organisations, and these principles should be embedded in their cultures and structures. Further consideration needs to be given to how this can be achieved.

e. Health and Wellbeing Boards should involve specialists when assessing needs via the Joint Strategic Needs Assessments, when setting priorities via the Health and Wellbeing Strategy, and when considering the extent to which consortia commissioning plans reflect local priorities.

f. Consortia and the national board should have a full understanding of commissioning for best value, and this should be considered over price when commissioning.

g. Due regard to the integrity of the range of a hospitals’ services should be considered to ensure there is a comprehensive, sustainable healthcare service for local populations when making commissioning decisions at both a national and local level, and when licensing new providers.

h. The national board and consortia should consider the longer-term sustainability of services, including education and training, when exercising their commissioning functions.

Safeguards against service fragmentation and enshrining integration

The RCP welcomes services becoming more responsive to local needs, an aim of the reforms. However, we would like to recommend that strong safeguards against the potentially damaging effects of service fragmentation be put in place.

The RCP is concerned that under the current proposals, services could fragment and competition could be at the expense of quality and integration. Although we welcome professional competition as a means to drive up standards, we wish to ensure that collaborative working is enshrined in the culture of commissioning and delivery of care. To achieve this we are calling for a range of safeguards that will ensure quality is at the heart of all commissioning decisions, that collaboration and integration of services are promoted, that common cultures of accountability and transparency apply across all providers, that service continuity is protected and that there are structures to facilitate the commissioning of ‘uncommon conditions.’ More detail on each of these recommendations is given below.

The importance of quality

The Royal College of Physicians understands quality. We have a 500 year history of setting standards. Quality is at the centre of RCP’s mission and objectives. No other body offers such a full range of evidence based quality guidance; we perform audits, issue clinical guidance, conduct clinical effectiveness studies, provide accreditation and write clinical pathways. Quality should be at the heart of the Bill. Currently we are concerned that there are inadequate safeguards to ensure competition does not threaten quality.

The RCP welcomes the evidence from Sir David Nicholson and Rt Hon Andrew Lansley CBE MP to the Health Bill Committee stating that competition in the NHS will be based on quality, not price. However, we still have concerns, particularly in the context of the £20 billion efficiency challenge, [7] that quality could slip as providers are under pressure to offer services at decreasing rates. This could result in low price at the expense of value for money when making commissioning decisions. To mitigate against this the RCP would like to see competition on quality on the face of the Bill. We believe that this should be written into Monitor’s role, which should be amended to promote competition on quality (clause 52).

On listening to the Cynthia Bower’s evidence to the Health Bill Committee we are further concerned that there will not be a body that will be tasked with rating quality. The Chief Executive of the Care Quality Commission made it clear that CQC’s role is a safety net, monitoring only essential standards of quality and safety. If competition is to be based on quality, it is unclear who will be monitoring quality and awarding the quality indicators that would allow comparison and competition. If there is no body responsible for measuring and grading quality, it will be impossible for competition to be based on this. The responsibility for grading services on quality needs to be given to an organisation. The RCP would recommend that Monitor’s role be altered to promote competition on quality and thus be given the responsibility to grade services and share this information with commissioners. We would welcome inclusion of this in the Bill, and believe clause 52 should be altered accordingly.

The risk of competition on price not quality is exacerbated as there are currently no clear measures for quality. We would not expect measures for quality to be included in the Bill, but we believe work needs to be initiated now to identify quality measures. This will enable the intention to measure success for providers on outcomes. Although we see the identification of quality measures as an ongoing process that will need continuous review, we expect a suite of quality measures to be ready by April 2013 when consortia and the national board take responsibility for commissioning. Identifying quality measures earlier will help pathfinder consortia, the shadow national NHS and health and wellbeing boards develop. The urgency of this crucial task cannot be underestimated. We offer the RCP’s services in identifying quality measures, which have a strong evidence base that can be used to drive up standards. The RCP is meeting with Sir David Nicholson in May to discuss this further.

Price

To further support consortia and the national board in considering value rather than price when commissioning the RCP urges the Department of Health to consider using a ‘best practice tariff’. This would not be an average tariff, but the cost of delivering a good service. This would be linked with quality and outcomes and based on value for money, rather than solely low cost. This should be designed by the NHS Commissioning Board, with support from the medical royal colleges. The RCP envisages it as a mechanism to promote integrated pathways, define quality and standards. We would not expect it to threaten competition because it would not stipulate preferred providers.

Integrated care

Collaboration and integration could be undermined by the requirement on Monitor to promote competition. We strongly believe that collaboration is more likely to improve patient outcomes than competition. Monitor’s role in promoting competition must not prohibit the involvement of secondary and tertiary care specialists in service planning. The RCP accepts that there are potential conflicts of interests with a representative of a ‘provider’ contributing to and signing off consortiums’ commissioning plans. There are various other potential areas of conflict of interest around the commissioner and provider role inherent in the Bill. For example, GPs will be both providers and commissioners and some providers will be required to join consortia because they hold primary medical services contracts. We do not believe, however, that these conflicts should be allowed to jeopardise integrated care. The RCP is calling for clarity to reassure the sector that inherent conflicts of interest in the system will not be allowed to prevent integrated care.

Furthermore, the RCP remains concerned that competition in a market of ‘willing providers’ will make it difficult for primary care and secondary care physicians to collaborate without fear of legal challenge from ‘competitors’. We have heard mixed evidence that this could be a threat. It is our understanding that if bodies within the NHS, such as foundation trusts, are behaving like private companies, they will be treated as such in law. However, the Secretary of State argued during his oral evidence session to the Health Bill Committee that the only circumstance where competition law applies is if the intention is to restrict provider access to commissioning services. There is still uncertainty in the sector over where and when competition law will apply under the reforms. We would like clarity on this and to recommend that that ‘commercial sensitivities’ are not allowed to block information sharing, transparency, accountability. The RCP is seeking legal advice as to whether a clause to this effect needs to be on the face of the Bill or accompanying guidance from the Department of Health would be sufficient in preventing this. We strongly urge the Department to clarify this issue, so there is no chance for a future test case and the decision on commercial sensitivities to be taken in the court of law.

Services should be integrated to ensure seamless pathways of care for patients. The RCP would like to highlight the risk of fracturing the patient experience if certain services are removed from hospitals. This would also risk destabilising foundation trusts. For example, if a urology service is removed from a large hospital, there could be no acute urology provision left. This can also affect continuity of care for patients, a particular issue for those with long term and/or complex conditions. Integrated care pathways and integration across care pathways, particularly for those with complex conditions and complex co-morbidities need to be protected. For example patients with diabetes may have to travel to several different locations and providers to receive a full range of care. In this paper the RCP has already called for due regard to the integrity of the range of a hospitals’ services to ensure there is a comprehensive, sustainable healthcare service for local populations to be a guiding principle for commissioning, which could be a safeguard against fracturing the patient experience. The RCP also sees a role for Monitor in enshrining integrated working into the new commissioning arrangements. Clause 54 provides a list of the considerations that Monitor must make when carrying out its functions. RCP believes these considerations should be extended to include consideration to the overriding principles of collaboration, integration and sustainability when licensing providers.

Failure and reconfiguration of services

More detail is required on how service continuity and patient health will be protected in the event of provider failure. Clarity is required on how the ‘designation’ of services by Monitor will work in practice (clause 69). Further guidance which fleshes out the intentions of the clauses in the Bill is necessary.

The RCP is also calling for clarity on the mechanisms that local populations can use if a reconfiguration is proposed in their area. The consultation process for a reconfiguration needs to be made clear. Would local populations appeal to the local authority scrutiny committee, Health and Wellbeing Board, Monitor and/or the NHS Commissioning Board? How will complaints be escalated? There should be accountability to the local population for these decisions.

Whistleblowing

The RCP would like to ensure the positive staff cultures apply across all service providers. The RCP sees these as a key tool in preventing a repeat of the events that occurred principally between January 2005 and March 2009 in the accident and emergency (A&E) department, the emergency assessment unit (EAU) and Wards 7, 8, 10, 11 and 12 at Mid Staffordshire NHS Foundation Trust.

All healthcare professionals, including managers and those working outside the NHS must be fully supportive of whilstleblowing and work to support the open and frank discussion of any concerns on standards of care. The RCP sees the reforms of the health service in England as an opportunity to develop these cultures and there is an opportunity to support this in the legislative framework. The RCP recommends that the constitution of all consortia and the national board (the requirement for the national board is in clause 19 and consortia in clause 21 of the Bill) detail how whistleblowing will be supported. We further recommend that Monitor publish guidance on how it will support the raising of concerns regarding poor standards of care.

Uncommon conditions

Service fragmentation has the potential to harm the NHS’s ability to commission services for uncommon conditions. A clear vision from the national Board on commissioning arrangements for ‘uncommon conditions’ is required. Facilities such as a trauma centres, or severe burns units, and conditions such as immunodeficiency, haematology, and haemophilia require a critical mass to be cost effective and are therefore currently commissioned on a regional basis. Consortia and the national board will need to work together to commission theses services. The RCP would recommend that the NHS Commissioning Board takes responsibility and uses a sub-national structure to commission effectively.

Conclusion

The RCP’s role is to set higher standards. We work to ensure patients receive the best possible care. The RCP has used its expertise to highlight some risks in the reforms and suggest safeguards to mitigate against them to the Health Bill Committee. Some of our recommendations require changes to the Bill, most require clarity and additional guidance from the Department of Health.

March 2011


[1] 2011 Government Response to the House of Commons Health Select Committee Third Report of Session 2010-11: Commissioning. Presented to Parliament by the Secretary of State for Health by Command of Her Majesty. London

[2] 2008 RCP RCGP RCPCH Teams without Walls. The value of medical innovation and leadership. London

[3] 2011 BMA Consultant involvement in commissioning – the implications of the Health and Social Care Bill. Joint CCSC and GPC guidance. London

[4] HM Government. Government Response to the House of Commons Health Select Committee Third Report of Session 2010-11: Commissioning . London , 2011

[5] House of Commons Health Committee. Commissioning. Third Report of Session 2010-11 . London, 2011

[6] John Healey NHS reforms will drive a wedge between GPs and specialists . Pulse, 9 February 2011 accessible from http://www.pulsetoday.co.uk/story.asp?storycode=4128498&cid=Also_on_pulse_1_140211&sp_rid=Njk2NzMxODI4MAS2&sp_mid=36279321

[7] The challenge, first articulated by the NHS Chief Executive, Sir David Nicolson, in 2009 to achieve an efficiency gain of 4% per annum from 2011-12 (also expressed as the need to make £15 - 20 billion in efficiency savings.