Written evidence from the British Medical
Association (CFI 11)
The British Medical Association (BMA) is an independent
trade union and voluntary professional association which represents
doctors and medical students from all branches of medicine throughout
the UK. With a membership of over 144,000, we promote the medical
and allied sciences, seek to maintain the honour and interests
of the medical profession and promote the achievement of high
quality healthcare.
1. EXECUTIVE
SUMMARY
1.1 The formal arrangements for the assurance
regime around consortia are unlikely to be sufficient for the
Board to be able deliver its objectives defined in its Commissioning
Outcomes Framework. What will be more important is how the Framework
is embedded in the system, through development of a sound working
relationship between the Board and consortia.
1.2 While the lines of accountability between
the NHS Commissioning Board, the Department of Health and the
Secretary of State appear to be relatively clear in the Bill,
the ability of the NHS Commissioning Board (and commissioning
consortia) to carry out its areas of responsibility autonomously
is not.
1.3 Requiring commissioning consortia to "obtain
appropriate advice" is not sufficient to ensure that the
full range of clinical expertise is integrated into the commissioning
process. We would like to see amendments to the Bill to ensure
that consortia seek advice from a representative range of doctors
in exercising their functions. This should include senior practising
doctors and medical academics with expertise and knowledge in
the relevant clinical areas.
1.4 The arrangements in the Bill do not appear
to make any attempt to reconcile the conflicts arising from the
separation of the commissioner and provider functions and if anything,
they have the potential to make them worse as a result of Monitor's
duty to promote competition. The BMA is opposed to the promotion
of competition and a market approach in the NHS as it does not
support the delivery of more integrated care for the benefit of
patients. Instead of putting a duty on Monitor to promote competition,
the Bill should encourage partnership working between consortia
and providers, which will allow the development of high quality
and cost effective service solutions.
1.5 The BMA is strongly opposed to the introduction
of price competition in the NHS - as made possible by a "maximum
tariff for some services" (Clause 103) - as there is clear
evidence that this will lead to a decline in quality.[23]
The Bill should be amended to explicitly preclude price competition.
1.6 Any suggestion of a financial reward or "quality
premium" to individual GPs or their practices based on the
success of their commissioning activities would be unacceptable
and potentially damaging to the doctor-patient relationship.
1.7 There is the potential for the new system
to be better placed to support service reconfigurations that benefit
patients by virtue of the fact that commissioning will be led
by clinicians in the future. However, the success of this will
largely depend on how much GP commissioners are able to involve
and work with other doctors and providers in the planning and
commissioning of services.
1.8 There do not appear to be any arrangements
in the Bill that specifically reconcile the conflict associated
with how the expansion of patient choice and the any willing provider
policy may have an impact on a consortium's ability to achieve
financial balance.
2. Does the assurance regime around commissioning
consortia give the NHS Commissioning Board sufficient authority
to deliver its objectives defined in its Commissioning Outcomes
Framework?
2.1 The Commissioning Outcomes Framework (COF)
will be the NHS Commissioning Board's attempt to translate the
national NHS Outcomes Framework, published by the Department of
Health, into a framework that can be used locally by GP commissioning
consortia.[24]
The Board will use the COF to hold consortia to account, presumably
through its duty to undertake an annual assessment of the performance
of each consortium (Clause 22, 14Z1). In drawing up their annual
commissioning plan, consortia are to have regard to any commissioning
guidance that the Board publishes (Clause 22, 14Y). The assumption
here is that this guidance will include the COF. However, although
a copy of the plan should be submitted to the Board, there appears
to be no requirement for the Board to review the plan. An annual
report to be produced by each consortium (Clause 22, 14Z) needs
to demonstrate how it has fulfilled its duties in general.
2.2 While the formal arrangements set out above
appear reasonable, an annual round of issuing guidance and performance
assessment is not likely to be sufficient to embed the COF into
the system. In order for the Board to deliver its objectives,
what will be more important is how the working relationship between
the Board and consortia develops and is managed in practice. For
example, a two-way dialogue on the development of the COF would
be more likely to yield better results.
2.3 We remain concerned that the gap between
a national NHS Commissioning Board and locally based consortia
will be too great, and there is a risk that the Board could be
too remote from individual consortia for the two to be able to
liaise effectively. As stated in the Association's written evidence
to the Health Committee's initial inquiry on commissioning, it
may be appropriate for the Board to have local outposts of some
kind, to liaise with consortia, provided this does not compromise
efficiency savings gained through the abolition of SHAs and does
not replicate the bureaucratic performance management functions
of SHAs and/or PCTs.
3. Are the arrangements proposed in the Bill
for defining the lines of accountability between the NHS Commissioning
Board, the Department of Health and the Secretary of State sufficient
to prevent potential future conflicts arising?
3.1 While the lines of accountability appear
to be relatively clear in the Bill, the ability of the NHS Commissioning
Board (and commissioning consortia) to carry out its areas of
responsibility autonomously is not.
3.2 The BMA has for some time advocated 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.[25]
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. An annual
mandate is unlikely to be sufficiently strategic 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.
3.3 Further, Clause 16 of the Bill fundamentally
undermines the autonomy of the NHS Commissioning Board and commissioning
consortia. As currently worded, the Secretary of State may impose
requirements onto the Board or consortia through regulations without
any consultation or agreement. This is of sufficient importance
that such additions should be explicit in the Bill. It is unacceptable
that conditions can be imposed without review or any mechanism
for review or agreement.
3.4 The BMA wishes to see arrangements in the
Bill that ensure that the autonomy of the NHS Commissioning Board
and commissioning consortia is not undermined by unnecessary political
interference.
4. Arrangements proposed for integrating the
full range of clinical expertise into the commissioning process
4.1 The BMA's position is that for commissioning
to be as effective as possible, it must be clinically led and,
in addition to GPs, doctors from public health and secondary care
must have significant input to commissioning decisions made by
consortia, particularly the design of clinical pathways. This
is essential to ensure that the best clinical practice is enshrined
in commissioning, with the full involvement of those with the
necessary clinical expertise.
4.2 At present, there is a duty upon consortia
to "obtain appropriate advice" (Clause 22, 14O), however
this is not sufficient. We would like to see amendments to the
Bill to ensure that consortia seek advice from a representative
range of doctors in exercising their functions. This should include
senior practising doctors in primary and secondary care, and public
health, in addition to medical academics with expertise and knowledge
in the relevant clinical areas.
5. Do the arrangements proposed in the Bill
reconcile the conflicts arising from the separation of the commissioner
and provider functions and will they allow the development of
high quality and cost effective service solutions?
5.1 The arrangements in the Bill do not appear
to make any attempt to reconcile the conflicts arising from the
separation of the commissioner and provider functions (or the
purchaser-provider split) and if anything, they have the potential
to make them worse. One of Monitor's, the new economic regulator,
core roles is to promote competition (Clause 52). The BMA is opposed
to the promotion of competition and a market approach in the NHS.
Evidence shows that increased commercialisation has not been beneficial
for the NHS or patients.[26]
We wish to see the NHS restored as a public service working cooperatively
for patients. Monitor's overriding purpose should be to ensure
the maintenance of comprehensive, high-quality, cost-effective
care to patient populations.
5.2 The circumstances under which Monitor will
be able to enforce competition need to be made clear. The current
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 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, comprehensive patient
care. If Monitor is too rigorous in the application of competition
rules, significant numbers of commissioners and providers could
be subject to investigation or involved in disputes with Monitor
over licence conditions, which could divert attention away from
the key task of maintaining high quality patient care.
5.3 The proposed regulatory framework will not
support, far less encourage, 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.
5.4 Another potential threat to the quality
of patient care is price competition, by virtue of the introduction
of a maximum tariff for some services (Clause 103). 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.[27]
In the current economic climate, where resources are scarce and
£20 billion savings are required to be identified.[28]
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.
The Bill should be amended to explicitly preclude price competition.
5.5 There is no duty on consortia to work with
providers in the same way that they have a duty to undertake joint
working with local authorities (Clause 19, 13J). Instead of putting
a duty on Monitor to promote competition, the Bill should encourage
partnership working between consortia and providers, thus breaking
down the artificial divisions between different parts of the health
service that are a feature of the purchaser-provider split.
6. Do the arrangements proposed in the bill
for the commissioning of primary care services address the potential
conflict of interest between consortia and local primary care
providers?
6.1 The NHS Commissioning Board will commission
primary care services in so far as they are delivered by GP practices
under GMS, PMS and APMS contracts. However, it remains unclear
how, in practice, the Board will exercise this function effectively.
6.2 There are two main areas where conflicts
of interest may be an issue. First, regarding GP practices who
wish to provide a wider range of services outside of their GMS/PMS/APMS
contracts, for which they are also the commissioner. Second, GPs'
dual role as advocates for individual patients and commissioners
for patient populations within a finite budget. The Bill requires
consortia to set out in their constitution how members will manage
any potential conflicts of interest (Schedule 2, Part 1). This
inclusion is helpful, but it does not actually address the issue.
6.2 GPs are, first and foremost, responsible
for the care they give to their individual patients. They will
need to be guided by the requirements of the General Medical Council,
including the articles of Good Medical Practice, and also the
Nolan Committee's seven principles of public life; selflessness,
integrity, objectivity, accountability, openness, honesty and
leadership.[29]
In this respect, any suggestion of a financial reward or 'quality
premium' to individual GPs or their practices based on the success
of their commissioning activities would be unacceptable and potentially
damaging to the doctor-patient relationship. It is worth pointing
out here that the funding to pay these rewards would be top-sliced
from consortia budgets, which otherwise would have been spent
on patient services, making them all the more unacceptable.
7. Will the structures proposed in the Bill
which are designed to safeguard co-operative arrangements between
health and social care which already exist and promote the development
of new ones work?
7.1 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 social care
services, including safeguarding, though there is little indication
in the Bill as to how this will promote better cooperation. 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.
8. Does the new system encourage commissioning
consortia to cooperate in achieving the benefits to patients which
may be available from major service reconfiguration through cross-area
collaboration by consortia in reconfiguring services?
8.1 Whilst the new system allows commissioning
consortia to come together to exercise their functions jointly
(Clause 22, 14Q), this does not necessarily encourage them to
do so.
8.2 Service reconfigurations are only acceptable
where they are evidence-based, clinically-led in partnership with
patients, safe and at least maintain or ideally enhance standards
of care across a health economy.[30]
There has been a notable lack of clinical engagement in the process
of reconfiguration to date and this has caused problems. The fact
that responsibility for commissioning will rest with commissioning
consortia may mean that in the future reconfigurations are pursued
for more appropriate reasons. However this will largely depend
on how successful GP commissioners are in involving and working
with other doctors and providers in the planning and commissioning
of services and, crucially, how effective they are in engaging
with local populations and politicians. As we have already highlighted
in our evidence, the new arrangements do not readily facilitate
integrated and collaborative working between commissioners and
providers, nor do they, of themselves, promote better public engagement.
8.3 Reconfiguration must not be driven purely
by short-term financial pressure as this could
risk safe and high-quality patient care. The
growing financial strain on NHS resources and commissioners' budgets
may make it harder for consortia to secure the wider clinician
and public support necessary to take forward reconfiguration proposals
as their motivation for doing so is called into question.
9. Arrangements proposed in the Bill for enabling
consortia to reconcile the potential conflict between patient
choice and commissioning by enhancing patient choice at the same
time as delivering the consortium's clinical and financial priorities
9.1 There do not appear to be any arrangements
in the Bill that specifically reconcile the conflict associated
with how the expansion of patient choice may have an impact on
a consortium's ability to achieve financial balance. As regards
consortia's clinical priorities, Government policies on patient
choice and any willing provider both have the ability to undermine
commissioning decisions which seek to put in place new clinical
pathways that deliver high-quality and cost-effective services
for patients. Furthermore, real choice is only likely to be a
reality where there is spare capacity in providers, something
which is both unlikely and also potentially wasteful in the current
financial climate.
10. Government support for consortia and existing
commissioning organisations to form clear and credible plans for
debt eradication and for tackling structural deficits within their
local health economy
10.1 The BMA has called for a fair method for
dealing with inherited debt that does not simply mean passing
the entire PCT debt to GP-led consortia. Analysis of PCT
financial projections, undertaken in November 2010, showed that
a quarter of PCTs were projecting deficits, averaging £9.4
million each, with the combined £338 million debt almost
as large as the £362 million surplus among those trusts reporting
that they would break even[31].
The BMA is extremely concerned that this level of inherited debt
will prevent GP-led consortia functioning to their full potential
when they take over commissioning responsibilities from PCTs.
We also believe the potential extent of inherited debt will discourage
GPs from becoming involved in consortia.
10.2 The Department of Health has confirmed[32]
that consortia will not be responsible for resolving PCT legacy
debt that arose prior to 2011-12. Although the Department is working
with SHAs to address circumstances where PCTs have debts, with
the expectation that any debt will be fully resolved by the end
of 2012—13, the credibility or deliverability of these plans
is unknown.
February 2011
23 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 Back
24
The NHS Outcomes Framework 2011/12 (2010). Department of Health. Back
25
Resolutions to this effect were passed at the BMA's Annual Representative
Meeting in 2001, 2005, 2006 and 2008. Back
26
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. Back
27
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 Back
28
The Operating Framework for the NHS in England 2011-12 (2011).
Department of Health. Back
29
See the BMA's General Practitioners Committee principles of GP
commissioning
http://www.bma.org.uk/images/whitepapergpcguidence1aug2010_tcm41-199488.pdf Back
30
See the BMA's Central Consultants and Specialists Committee good
practice guide on hospital reconfiguration
http://www.bma.org.uk/healthcare_policy/nhs_system_reform/Hospitalreconfiguration040507.jsp Back
31
"GPs face debt crisis as PCTs fall £300 million into
the red", Pulse. Wednesday 10 November 2010. Available at
http://www.pulsetoday.co.uk/story.asp?sectioncode=23&storycode=4127669&c=1 Back
32
Liberating the NHS: Legislative framework and next steps (2010).
Department of Health. Back
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