Health and Social Care Bill

Memorandum submitted by the British Medical Association (HS 17)

The British Medical Association (BMA) is an independent trade union and voluntary professional association which represents doctors from all branches of medicine all over the UK. It has a total membership of over 144,000.

Context

1. The Health and Social Care Bill is a complex and far-reaching piece of legislation, reflecting the wide-ranging nature of the Government’s programme of reform for the NHS in England. The BMA believes that some potentially positive elements of the reforms - giving clinicians greater responsibility for commissioning and shaping local health services, increasing public and patient involvement, and putting a greater focus on improving public health - are threatened by other aspects, particularly those that seek to increase competition.

2. The Bill brings into stark relief a number of grave concerns about the way the Government wants to change the NHS, and the BMA believes that it requires significant amendment to prevent these concerns becoming reality. It contains significant gaps which must be addressed to ensure proper accountability, to prevent unacceptable variation and to ensure appropriate national oversight of key issues such as education, training and workforce. We also call on the Government to halt implementation of the reforms while the legislation is going through Parliament.

3. Enforcing competition and adding price into the competitive mix within the NHS will always be damaging - doing so at a time of huge pressure on public finances and while staff are dealing with major structural change could be disastrous. The NHS is being tasked to find efficiency savings of £20 billion by 2014-15. This is already resulting in cuts to services and staff [1] , which have a direct impact on patient care. The NHS continues to face the demands of an ageing population and the rising costs of medicines and new technology. Cuts in spending in other areas, such as welfare benefits and social care, will have a knock-on effect on demand in the NHS. The Government claims that the cost of implementing the reforms will be £1.2b illio n although independent academics have estimated costs to be as high as £3 billion. [2]

4. The BMA is committed to the founding principles of a National Health Service delivered in a cooperative and coordinated environment where patients are guaranteed the most clinically appropriate and cost-effective care. Price competition and a fully open market will make this unachievable.

5. In summary, the BMA wishes to see amendments to the Bill to ensure that:

· The autonomy of the NHS Commissioning Board and commissioning consortia is not undermined by unnecessary political interference;

· Consortia should involve practising senior hospital doctors, medical academics, public health medicine doctors and patients in the development of clinical pathways;

· Consortia are not forced to promote competition between providers and instead are able to work collaboratively across primary and secondary care boundaries in order to improve services for patients, without being subject to challenge;

· There is flexibility in the pace of change for the winding down of primary care trusts (PCTs) and strategic health authorities (SHAs), in order to address the disparity in the capability of local health economies to take on the commissioning role;

· National oversight of medical education and training is maintained;

· The management and planning of the medical workforce is carried out at minimum at a national level and preferably, at a UK level;

· Price competition, with the associated likelihood of a decline in quality, is explicitly precluded. Tariffs (prices for services) should encourage high-quality care and value for money rather than competition based on price;

· Economic regulation and financial accountability are considered within the framework of the stability of the local health economy, with commissioning decisions driven by clinical need, quality, sustainability and local priorities, as well as best value;

· Patient safety and quality are not undermined as a result of an artificial timetable to make all NHS trusts achieve foundation trust status by 1 April 2014;

· Any changes to the current arrangement of a cap on the amount of income foundation trusts can earn from other, non-NHS sources are not at the expense of NHS patients’ ability to access services. A re-examination of the basis for calculating the cap may be appropriate, however conducting this exercise via the legislative process is inappropriate;

· Strong safeguards are in place to ensure that patient confidentiality is not undermined by the Information Revolution .

The NHS Commissioning Board

6. The BMA has, for some time, called for an independent board to run the NHS with a long-term strategy, free from party political influence and removed from direct governmental and ministerial control [3] . The new NHS Commissioning Board is to receive an annual mandate from the Secretary of State before the start of each financial year as to the objectives of the Board for that year (Clause 19, section 13A, p14). An annual mandate is unlikely to allow for sufficiently long-term strategic planning and risks undermining the autonomy of the Board. The mandate should set the direction that allows the Board to develop and implement a clear strategy for improvements.

7. Those strategic functions of the Board, that are transferred from the current responsibilities of strategic health authorities, need to be clearly identified in the Bill.

Public health

8. The success of the plans outlined in the Public Health White Paper ( Healthy Lives, Healthy People ) depends on ensuring an independent, secure and well-resourced , specialist public health workforce across all three domains of public health (health protection, health improvement and healthcare public health). The Bill should clearly state what should be covered within the ring-fenced budget be ing given to local authorities.

9. It is vital that public health is supported during this period of transition and cuts, not least because many public health specialists have the expertise in population medicine to be able to help make real savings without damaging frontline services. The independence of Directors of Public Health as professionals treating a population must be protected in legislation.

10. Under the new system of commissioning consortia there should be continued public health input into commissioning and, reciprocally, GP input into public health strategies.

Commissioning consortia

11. The BMA has consistently called for greater clinical involvement in the design and management of the health service. Commissioning should be led by clinicians, working together across primary and secondary care, as they are best placed to understand their patients’ needs and shape services to meet those needs. Consortia should involve practising senior hospital doctors, medical academics, public health medicine doctors and patients in the development of clinical pathways. The duty on commissioning consortia to obtain appropriate advice (Clause 22) needs to be strengthened in order to embed this approach into the system.

12. Commissioning bodies should be free to take the most appropriate commissioning decisions on behalf of and in conjunction with, the populations for which they are responsible. The ability of the Secretary of State through regulation to impose requirements on consortia (and the Board) to promote competition between providers is inappropriate, could prevent the development of productive long-term relationships with key providers and potentially increase the risk of failure (Clause 63). Commissioning consortia should be able to place contracts with the most suitable providers without fear of being accused of anti-competitive behaviour (Clause 64). They should be free to design new clinical pathways built around integration of services, inclusivity and partnership.

Abolition of strategic health authorities and primary care trusts

13. There is considerable disparity in the capability of local health economies to take on the commissioning role. The winding down of primary care trusts (PCTs) and strategic health authorities (SHAs) must be managed carefully to avoid services failing or patient care suffering. This potential vacuum and loss of skilled staff is extremely concerning, as there is a real risk of PCT implosion or, at the very least, instability. The pace of change in developing commissioning must allow the vanguard to develop swiftly, while allowing those who are less advanced to take longer and to be properly supported, without destabilising the provision of healthcare in either case. PCTs should be retained until commissioning consortia are fully operational.

14. The formation of sub-regional PCT clusters, which will be in place until at least April 2013, does not adequately address these concerns.

15. There remains a lack of clarity around how and where the many statutory functions and responsibilities of PCTs and SHAs will be undertaken after they are abolished. These include the oversight of the provider role of GPs together with holding performers lists, emergency planning, child protection and the allocation of primary care premises funding. Plans for revalidation of GPs, as currently constituted, rely on PCT involvement in providing the responsible officer function to oversee the process at a local level and ensure that governance systems are sufficiently robust to support it. We are aware that a complete list of both statutory and non-statutory roles has been drawn up and sent to PCTs, and reiterate our call for this to be made publicly available. Functions that will no longer be required should be clearly identified so that consortia are given the appropriate information to allow them to plan to operate effectively with their allocated budgets.

16. The effect of abolition of SHAs on the education and training of doctors must also be addressed . SHAs play a key role in facilitating regional collaboration to improve strategic workforce outcomes and work in partnership with deaneries and education providers to ensure the provision of high - quality education and training that meets both local and national needs. The current proposals give no indication as to how these important functions will be delivered in the future and this must be addressed urgently .

Education and training and workforce

17. The BMA believes that effective national oversight of medical education and training, and by extension, of workforce, is absolutely essential. Local employers lack a broad overview of medical workforce requirements, particularly given that the length of specialist training can be as much as 10-15 years following graduation. Therefore, the management, planning and oversight of the medical workforce can only be done at minimum at a national level, and more properly at a UK level.

18. UK cohesion and consistency in education and training ensures all medical graduates are trained to the same high standard and enables them to move between national boundaries. This is essential for ensuring the same high standard of patient care is maintained throughout the UK and that we retain a flexible UK medical workforce.

19. The Bill must make provision to ensure the effective management and planning of education and training of medical graduates.

Price setting, regulation and competition

20. The BMA is strongly opposed to the introduction of price competition in the NHS as there is clear evidence that this will lead to a decline in quality [4] . Giving Monitor and the NHS Commissioning Board the power (Clause 103) to set a maximum national tariff (price) for the provision of some services, without appropriate safeguards, opens the way for price competition. In the current economic climate, where resources are scarce and £20 billion savings are required to be identified [5] , there is even more potential for the focus to shift to cost rather than quality, thus damaging patient care. Price competition is also likely to increase transaction costs, as commissioners and providers spend substantial amounts of time negotiating prices.

21. The Bill should be amended to explicitly preclude price competition.

22. Tariffs should encourage high-quality care and value for money and Monitor should have flexibility to approve higher tariffs to protect essential services. Economic regulation and financial accountability should be considered within the framework of the stability of the local health economy, with commissioning decisions driven by clinical need, quality, sustainability and local priorities, as well as best value.

23. The current system of payment by results (PbR) is highly bureaucratic, encourages perverse incentives, works against sensible reconfiguration of services and is a particularly inappropriate funding mechanism for acute and long-term care. The BMA would support a range of pricing and payment mechanisms to take volume into account, to incentivise quality, to discourage unwanted activity and to recognise and incentivise the development of new clinical pathways.

24. The BMA is opposed to the expansion of Monitor’s responsibilities to include a duty to "promote competition where appropriate" (Clause 52) through its licensing regime and by forcing commissioners to promote competition between providers. There remains a lack of clarity over the circumstances under which Monitor will be able to enforce such competition and the use of any willing provider. This uncertainty will make it impossible for commissioners and providers to operate in the best interests of their patient populations and in the confidence that they are not going to be exposed to frequent and potentially costly challenge. It is therefore vital that Monitor’s application of competition rules is not allowed to divert the attention of providers and commissioners away from the key task of designing and maintaining high-quality patient care.

25. The proposed regulatory framework will not support the delivery of more integrated care. This is particularly the case if arrangements between local providers and commissioners that have worked well in the past, are deemed anti-competitive. This presents risks to the stability of the local health economy and the quality of patient care.

26. The BMA supports the Care Quality Commission (CQC) regulating all healthcare providers. This should help to maintain essential standards of quality and safety. The Bill explicitly requires (Clause 264) Monitor and the CQC to cooperate in operating their separate regimes, yet each will be able to take enforcement action independently of the other. The precise relationship between the two regulators remains unclear. The increased regulator burden and the lack of operational clarity make it difficult to see how this will work for the benefit of patients and a more efficient and effective health service. This needs to be clarified in the Bill.

27. The BMA is opposed to the opening up of all aspects of publicly funded healthcare provision to any willing provider and the introduction of price competition. It will damage the ability of the NHS to provide services in the most efficient and cost-effective way. It will destabilise provision, increase transaction costs, and will threaten the provision of essential local services. We are not reassured by the statement that decisions to protect services will initially rest with commissioners, who will discuss them with providers. The ability of the economic regulator to challenge those decisions will undermine the confidence of commissioners to make decisions based on their clinical judgment.

Foundation Trusts/National terms and conditions of service

28. The BMA is opposed to the idea that all NHS trusts should be forced to become foundation trusts by 1 April 2014, given the unacceptable outcomes that have resulted in a small number of cases where the financial imperatives required to achieve FT status have been pursued at the expense of good-quality patient care [6] . Intensifying the pressure to achieve foundation trust status within three years is likely to distort priorities and drive trusts to place the achievement of this target above all others, including safe patient care.

29. It is unlikely that all NHS trusts will achieve foundation trusts status within this timescale or that all existing foundation trusts will remain financially viable, as NHS finances become scarcer. This raises the prospect of an increased number of trust mergers, takeovers, by NHS and non-NHS providers or even failure.

30. We are opposed to the widening scale and scope of the market in healthcare that will occur as a result of requiring all trusts to become foundation trusts and repealing NHS trust legislation. Foundation trusts will become, in all but name, private entities, rather than NHS entities, and, as such, will be subject to the same rules and regulations that apply to other private companies, including competition law. The BMA is opposed to this drive to create a fully open market, as evidence [7] shows that increased commercialisation has not been beneficial for the NHS or patients. We are committed to an NHS that is publicly funded through central taxes, free at the point of delivery and publicly accountable.

31. The BMA is also opposed to any changes which would undermine national terms and conditions for staff delivering publicly funded health care. They are essential for maintaining an equitable spread of doctors across the UK, safeguarding against variable and sub-standard working conditions and avoiding the creation of a market in doctors moving around the UK. Local pay bargaining is also very wasteful in both management and clinical time.

32. The BMA believes the abolition of the cap on the amount of income foundation trusts can earn from other sources (Clause 150) has the potential to act as an incentive for foundation trusts to undertake more non-NHS activity at the expense of NHS patients’ ability to access services. If unfettered, this could lead to a two-tier health service, as foundation trusts invest more resources in non-NHS facilities.

33. The case against the existence of the cap has not in our view been made, however the basis for calculating the cap could be re-examined. Were this to lead to a change in the current arrangements, this should not, as stated above, be at the expense of NHS patients’ ability to access services. Conducting this exercise via the legislative process is inappropriate.

HealthWatch

34. The BMA supports the intention to increase patient and public engagement through the development of HealthWatch England and local HealthWatch. Many GP practices have already taken the initiative in this area and encouraged the development of Patient Participation Groups (PPGs). This has been of considerable benefit to both patients and practices, and we hope that the roles of independent PPGs and local HealthWatch groups will be complementary. However, it will be important to provide local HealthWatch groups with appropriate funding, training and support to ensure they are properly equipped to provide the range of services identified under their remit in the Bill. The BMA would like clarification about the circumstances in which local HealthWatch will be able to recommend that poor services are investigated and whether this will include individual doctors, teams, departments and hospitals.

Local government

35. In principle, the BMA welcomes the aim of increasing local democracy in health and recognises the importance of health services and local authorities working more closely together for the benefit of patients and the public. However, it is essential that any transition is careful and measured and that local authorities have the capacity, resources, depth of understanding and long-term responsibility to carry forward changes.

36. The BMA hopes that Health and Wellbeing Boards (Clause 178) will allow local authorities to take a strategic approach and promote integration across health and care services, including safeguarding. The BMA supports the necessary simplification and extension of powers that enable joint working between the NHS and local authorities and hopes these arrangements will give local authorities influence over NHS commissioning, and corresponding influence for NHS commissioners in relation to public health and social care. However, we would be concerned if health issues became the subjects of local politicisation and distortion by local politicians as a result of these changes or led to significant differences in the range and standard of NHS care that is provided throughout England.

Information

37. The Information Revolution sets out a vision of empowering patients and giving them greater control over their information. The BMA supports this move. In contrast, the Health and Social Care Bill gives broad powers to the Secretary of State, Commissioning Board, Information Centre, and others to require the transfer of health and social care information.

We are concerned about the extent of these powers, particularly as the Bill sets out the aboli tion of the National Information Governance Board. The BMA is particularly concerned about the impact upon the confidentiality of patient information due to the scant detail around information governance. The BMA is strongly opposed to any legislation which could undermine patient confidentiality. Whilst the BMA supports the use of anonymised data for secondary health purposes, including research, identifiable information should not ordinarily be disclosed unless patients have given their explicit consent.

February 2011


[1] ‘ 26,841 job losses put patient care in jeopardy’ , RCN . Friday 12 July, 2010 . Available at http://www.rcn.org.uk/newsevents/press_releases/uk/26,841_job_losses_put_patient_care_in_jeopardy_-_rcn

[2] ‘ NHS reforms will cost £3bn and will not work’ , The Telegraph. Saturday 17 July, 2010. Available at http://www.telegraph.co.uk/health/healthnews/7894203/NHS-reforms-will-cost-3bn-and-will-not-work-academic.html

[3] Resolutions to this effect were passed at the BMA’s Annual Representative Meeting in 2001, 2005, 2006 and 2008.

[4] Propper et al. (2004) ‘Does Competition Between Hospitals Improve the Quality of Care? Hospital Death Rates and the NHS Internal Market.’ Journal of Public Economics, 88 , 1247-1272

[5] The Operating Framework for the NHS in England 2011/12 . Department of Health, 2011.

[6] Robert Francis inquiry report into Mid-Staffordshire NHS Foundation Trust . Department of Health, 2010.

[7] Fotaki et al . (2008) ‘What benefits will choice bring to patients? Literature review and assessment of implications’. Journal of Health Services Research and Policy , 13 , No. 3, pp.178-184.