Health and Social Care Bill

Memorandum submitted by the Specialised Healthcare Alliance (HS 53)

1. The Specialised Healthcare Alliance is a coalition of 61 patient-related organisations supported by nine corporate members which campaigns on behalf of people with rare and complex conditions requiring specialised care. Examples are numerous but include certain cancers, cystic fibrosis, haemophilia, neurological conditions and a wide range of services for children. Accidents or complications of more common conditions can also trigger the need for specialised services such as burns, pain management and spinal injuries.

Executive Summary

2. There are four main issues which the Alliance wishes to draw to the attention of the Public Bill Committee:

a) Direct commissioning functions of the NHS Commissioning Board

The Alliance welcomes the provision that the Secretary of State may require the NHS Commissioning Board to commission services with regard to a range of criteria, including patient numbers and cost (clause 11). The accompanying Impact Assessment clarifies that these are expected to include national and regional specialised services, the latter as defined by the Specialised Services National Definitions Set. The Alliance agrees that commissioning by the Board holds out the prospect of improvements to specialised services in terms of access, funding and quality. We do, however, consider that the Board will require a sub-national structure to deliver these benefits and the Bill is notably silent on that score, which might be sensibly addressed in clause 19 on exercise of (the Board’s) functions. This also needs to clarify what recourse individuals and organisations have outside the Board for services commissioned by the Board.

b) Monitor and the designation of providers of specialised services

The Alliance attaches great importance to designation of specialised providers, as set out in the Carter Report on specialised commissioning in 2006. This allows commissioners periodically to designate providers based on a nationally agreed set of patient-centred, clinical, service, quality and financial criteria. In particular, this ensures adequate patient volumes to sustain requisite levels of clinical expertise to deliver high quality, safe services; a key lesson of the Bristol Inquiry. The Alliance is concerned that Monitor’s role in promoting competition could conflict with the need to designate specialised providers. Monitor’s remit in the Bill needs to be amended to recognise the primacy of patient safety and allow for designation as defined in the Carter Report.

c) Use of maximum tariffs

The Impact Assessment envisages extension of the national tariff to specialised providers as one of the benefits of commissioning by the Board. The Alliance supports tariffs being developed for specialised care providing the data underpinning them is sufficiently robust and can accommodate often wide variations in cost per patient, depending on complexity. We are, however, concerned by reference in clause 103 and elsewhere to the tariff being used as a maximum price. The available evidence suggests that price competition in healthcare can easily be detrimental to standards. We would therefore welcome an amendment to the Bill deleting reference to the tariff being used as a maximum price or a clear and binding explanation as to the circumstances in which it could occur.

d) Patient and public involvement

The Alliance sees Healthwatch England as vital in collecting the views of people who use specialised services. However, the Alliance is concerned that this role may become swamped in Healthwatch England’s large portfolio. The Alliance is therefore calling for Healthwatch England to collect specific information on the views of people who use specialised services.

a) Direct commissioning functions of the NHS Commissioning Board

Clause 11: Power to require Board to commission certain health services

Clause 19: The NHS Commissioning Board: further provision

3. The Alliance welcomes the provision that the Secretary of State may require the NHS Commissioning Board to commission services with regard to a range of criteria (clause 11, subsection (3)). The Department’s Impact Assessment makes clear that these are expected to include national and regional specialised services.

4. For the most part, the Alliance supports the Impact Assessment’s evaluation of the potential benefits of the Board commissioning specialised services, including streamlined decision-making, funding, planning and commissioning, and more transparent decision-making processes.

5. The Alliance also supports the defining of regional services, as referenced in the Impact Assessment, with regard to the Specialised Services National Definitions Set. This is a recently updated document which provides a clearly-defined reference point and would in particular aid the transfer of commissioning functions to the Board.

6. The Alliance recognises that the factors to which the Secretary of State must have regard when deciding which services he will require the Board to commission would allow for the inclusion of specialised services in the Board’s direct commissioning functions. However, it is not clear exactly how these criteria will be interpreted, or how they will be used in practice. The Alliance is therefore seeking clarification on how these criteria will be interpreted for the future.

7. The Alliance believes that the Secretary of State’s mandate to the Board (as set out in clause 19, 13A: Mandate to the Board) will go some way to ensuring that the Board is appropriately assessed with regard to its direct commissioning functions. However, the Alliance notes that the Board will only be assessed annually on the objectives set out in the Mandate. Therefore, the Alliance would like further information on what recourse individuals and organisations will have outside the Board for services commissioned by the Board.

8. The Bill gives no guidance on any sub-national structures of the Board, which will be vital in ensuring that the Board carries out its direct commissioning functions effectively. A sub-national structure would help integrate the Board’s work with that of GP commissioning consortia and providers. It would also enable the engagement and input of GP consortia, alongside the effective provision of those primary and community care services best commissioned at local level for people with specialised conditions. The Alliance is therefore seeking re-assurance that the Board will have a sufficient sub-national structure to fulfil its responsibilities effectively. This could be addressed at an appropriate point in clause 19.

b) Monitor and the designation of providers of specialised services

Clauses 51-55: Monitor

9. Clause 52 of the Bill sets out Monitor’s main duty as ‘promoting competition where appropriate.’ Clauses 52 and 54 set out a large number of factors to which Monitor must have regard when exercising its functions, while clause 55 states that where Monitor considers that any of its general duties conflict with each other, it will be able to resolve the conflict ‘in the manner it considers best.’

10. The Carter Report on specialised services (2006) recommends the designation of providers of specialised services. Designation allows commissioners periodically to designate a certain number of providers for a particular service based on a nationally agreed set of patient-centred, clinical, service, quality and financial criteria. The Alliance supports the Carter Report’s view that designation of specialised providers helps to secure an appropriate concentration of clinical expertise and activity to safeguard patient access to high-quality, cost-effective services located to maximise geographical convenience.

11. The Alliance is concerned that Monitor’s new role in promoting competition might prove incompatible with the designation of providers of specialised services. Although the process of designation helps to ensure that many of the factors which Monitor must have regard to are met, in particular patient safety, it is clear that Monitor must balance a large number of considerations.

12. The Alliance is therefore calling for Monitor’s remit to be amended to protect the ability of the NHS Commissioning Board to designate providers of specialised services. We believe that this could be achieved by establishing the primacy of patient safety within those factors to which Monitor must have regard.

13. Please note that the designation of providers of specialised services should not be confused with the concept of essential designated services, as introduced in the Bill in clauses 69-73: Designated Services. However, the inclusion of these designated services in the Bill does set a precedent for the curtailment of Monitor’s powers with regard to competition where it is in the public interest to do so.

c) Use of maximum tariffs

Clauses 103 – 112: Pricing

14. The Department’s Impact Assessment envisages the extension of national tariffs for specialised services. The Alliance supports tariffs being developed for specialised care providing the data underpinning them is sufficiently robust and can accommodate often wide variations in cost per patient, depending on complexity.

15. However, the Alliance is concerned by references in clause 103 and elsewhere to a ‘maximum price’ which would be set out in the national tariff.

16. The original intention of the tariff was to provide a robust approach to pricing which would free commissioners from negotiating prices at a local level, thus allowing for competition between providers based on quality rather than price.

17. The Alliance fears that the introduction of a ‘maximum price’ would rapidly introduce competition on the basis of price rather than quality, resulting in a detrimental impact on the quality of services. As negotiation on price would still be required at local level it would also call into question the value of establishing national tariffs in the first place.

18. The Alliance is therefore calling for all references to the national tariff specifying a maximum price to be removed from the Bill or a clear and binding explanation as to the circumstances in which it could occur.

d) Patient and public involvement

Clause 166: Healthwatch England

19. The Alliance stresses the importance of Healthwatch England in collecting the views of patients with specialised conditions, since other Healthwatch organisations will be too locally focused.

20. However, the Alliance is concerned that the collection of the views of people who use specialised services could get overlooked given Healthwatch England’s large portfolio. The Alliance is therefore calling for clarification during discussion of clause 166, 45A (Functions to be exercised by Healthwatch England), that Healthwatch England will have a specific duty to collect the views of people who use specialised services.

February 2011