Written evidence from NHS Confederation
- The government's proposed reforms present an
important opportunity to create a meaningful link between the
decisions taken in the GP's consulting room and their implications
for the use of NHS resources. PCTs were not always able to translate
commissioning intentions into changes in GP behaviour. It will
be important that GP consortia are able to do this.
- Whilst we support the objectives of the reforms
and are pleased the government has addressed some issues we raised
in response to the White Paper, we still have some concerns.
- Crucial to the implementation of the reforms
will be the success of new GP consortia leaders in attracting
GP followers and achieving genuine improvements in general practice.
GP commissioners must be provided with the right tools to deliver
improvements in quality and performance in primary and secondary
care and to ensure good practice in commissioning and provision.
- There is not yet sufficient clarity or consensus
about what in the new system will drive quality improvement, and
who will intervene when things go wrong. Further clarity is needed
about the mechanisms to enable consortia to support the Board
in securing continuous improvement in primary medical services.
- Legislation, regulations and guidance must strike
a balance between strong accountability and assurance and local
organisations' autonomy. The decisions and behaviours of the Secretary
of State and the NHS Commissioning Board in exercising their powers
will also be crucial.
- A balance will need to be struck in how conflicting
or competing duties are applied in practice. This makes it all
the more important to ensure the accountability mechanisms in
the Bill are clear and powerful. Proposed mechanisms for ensuring
consortia and the NHS Commissioning Board are accountable to,
and effectively involve, patients and the public require further
- It will be important for consortia to involve
a wide pool of health professionals in commissioning. We remain
concerned about the potential loss of public health expertise
as public health responsibilities transfer from PCTs to local
authorities and Public Health England. The Government should also
explain its plans for clinical networks.
- Greater clarity is needed about how patient choice
will be enabled in practice, both in terms of choosing a provider
when requiring treatment and in choosing a commissioning organisation
to arrange care more generally.
- The legislation must make clear that the promotion
of competition is a key element of providing protection to patients
and taxpayers. At the same time, the implementation of competition
law in healthcare should be tailored to recognise and encourage
cooperative and integrated arrangements where these are clearly
in patients' and taxpayers' interests.
- Safeguards will be needed to ensure the independence
of local Healthwatch, given the powers of funding and accountability
that local authorities will hold over the bodies.
- PCT staff are central to achieving a successful
transition to the new system. We regret that we continue to see
rhetoric used in public which is both unnecessary and counterproductive
in this regard.
1. About the NHS Confederation
- 1.1 The NHS Confederation is the independent
membership body for the full range of organisations that make
up the modern NHS. We have over 95% of NHS organisations in our
membership including ambulance trusts, acute and foundation trusts,
mental health trusts and primary care trusts plus a growing number
of independent healthcare organisations that deliver services
on behalf of the NHS.
- 1.2 We are uniquely placed to consult with
and speak for the health system as a whole. To enable us to advise
the government on the proposed reforms to the NHS, we have been
consulting extensively with our members across the country since
July 2010 through engagement events, consultation, and other formal
and informal mechanisms, to hear about their views on the planned
- 1.3 We welcome the Health Committee's careful
consideration of the NHS White Paper, Equity and excellence:
liberating the NHS, and its desire to scrutinise the implications
of the Health and Social Care Bill.
- 1.4 Our evidence includes the key points
from our response to the consultation on the white paper and our
recent briefings for the Bill's Second Reading and Committee stage,
as they relate to the Health Committee's identified questions.
2. The assurance regime for commissioning
consortia and authority of the NHS Commissioning board to deliver
- 2.1 We welcome the stated intention of the
Bill to loosen central government's day-to-day control over the
commissioning and delivery of NHS services. However, there is
not sufficient clarity or consensus about what in the new system
will drive quality improvement, and who is going to get a grip
when things go wrong.
- 2.2 Commissioning consortia will have a duty
to promote quality improvement and will also be required to maintain
financial balance. However, the Government still needs to clarify
the influence consortia will have over individual practices to
enable GP commissioners to deliver these duties. In addition,
it is still unclear how it will be ensured that consortia governance
arrangements are adequate.
- 2.3 The Government should put in place an
assurance system for consortia. The NHS Commissioning Board should
apply tests to ensure consortia maintain strong governance arrangements
with clear, transparent and robust decision-making and audit procedures.
Detailed, prescriptive guidance should be avoided to provide local
organisations with the freedom to innovate and establish their
own ways of working whilst providing some assurance that organisations
are suitably constituted. We would like the Government to clarify
at an early opportunity the tests it would apply to consortia
- 2.4 The Bill sets out a clear intervention
regime for consortia that are failing or deemed at risk of failing,
but there is no indication of how performance is monitored and
managed prior to that point. Will the Board evaluate the performance
of consortia, negotiate specific areas or levels of quality improvement
with individual consortia, and determine failure or potential
failure? If so, how will it do so?
- 2.5 Within the legislation and subsequent
regulations and guidance, a careful balance must be struck between
accountability and assurance mechanisms. They need to be strong
enough to ensure the system achieves its objectives, whilst avoiding
over-empowering top-down structures at the expense of local organisations'
autonomy to set local Priorities and to make their own commissioning
- 2.6 The decisions and behaviours of the Secretary
of State and the Board in exercising their powers will also be
crucial. As the Bill stands, the potential for the Secretary of
State to direct the NHS Commissioning Board and for the Board
to direct commissioning consortia through regulations remains
3. Arrangements for defining lines of accountability
between the NHS Commissioning Board, the Department of Health
and the Secretary of State to prevent potential future conflicts
- 3.1 The Bill sets out a clear line of accountability
between the NHS Commissioning Board and the Secretary of State,
with a national mandate agreed annually. The Secretary of State
has powers of intervention which seem appropriate. However, the
Bill places a number of duties on different bodies. Sometimes
these are unavoidably conflicting or competing.
- 3.2 A balance will need to be struck in how
conflicting or competing duties are applied in practice. This
makes it all the more important to ensure accountability mechanisms
in the Bill are clear and sufficient, and those organisations
or individuals that are responsible for holding others to account
have sufficient powers to take appropriate action where they have
4. Arrangements for integrating the full range
of clinical expertise into the commissioning process
- 4.1 We agree that it is essential for clinical
engagement in commissioning to draw from as wide a pool of practitioners
as is possible. We have previously highlighted the apparent omission
of any consideration of the role of specialist doctors or of the
wider clinical community. In our view, it would not be appropriate
to specify in primary legislation exactly how commissioners should
involve these professionals. Individual consortia should nevertheless
make appropriate arrangements to involve a wide pool of health
professionals in commissioning.
- 4.2 We remain concerned about the potential
loss of public health expertise as public health responsibilities
transfer from PCTs to local authorities and Public Health England.
PCT public health teams currently provide expert support to the
PCT's commissioning of health services. The Government has not
yet been clear whether it expects public health professionals
in local authorities to provide this support to GP consortia in
future. If this is the expectation, the Bill needs to clarify
that public health professionals in local authorities should be
required to provide this support. Adequate funding will also be
- 4.3 We would like the Government to explain
its plans for clinical networks. Clinical networks have helped
integrate care pathways and improve the quality of care, providing
valuable local support and clinical expertise. We were pleased
to hear the future chief executive of the NHS Commissioning Board,
which would be responsible for ensuring these networks' expertise
remains after 2012, recently reassuring cancer networks that he,
"cannot imagine a period where we would not have vibrant
cancer networks operating in the system"
However, does the Government intend all clinical networks (for
example, trauma and stroke networks) to survive in present form
and, if not, what other arrangements would ensure necessary collaboration
- 4.4 PCTs contain many examples of effective
mechanisms for securing multi-professional involvement in commissioning.
These would take significant time, effort and resource to re-build
if they are lost in the transition to the new system. PCT staff
have many years' experience of developing these arrangements.
They will have a vital role to play in helping to sustain and
develop them in a period of change. We would welcome a conversation
involving all partiesincluding existing PCT staffabout
the role of clinicians, health and public health professionals
from all sectors in the new commissioning arrangements.
5. Arrangements for ensuring that separating
the commissioner and provider functions does not obstruct the
development of high quality and cost effective service solutions
- 5.1 The separation of commissioning and provision
is intended to promote competition between providers and increase
choice for patients. We believe choice and competition are critical
components of creating a patient-centred and patient-led NHS.
However, there is consensus in the health sector that cooperation
and integration will often be beneficial to patients and taxpayers.
- 5.2 The legislation must clarify that promoting
competition is a key element of protecting patients and taxpayers.
At the same time, the interpretation of competition law in healthcare
should be tailored to recognise and encourage cooperative and
integrated arrangements where these are clearly in patients' and
- 5.3 Some fear that competition will undermine
integration, but this is not intrinsic to the competition regime.
Lack of integration is more likely to be the result of poor management,
culture, and the way that procurements are carried out than a
direct result of markets or the application of competition law.
There are ways of organising care so competition is between integrated
services that provide the whole package a patient needs. Services
can also be procured in this way.
- 5.4 The Government has said that, "the
Bill will ensure that NHS commissioners will be subject to comparable
prohibitions of anti-competitive conduct as those for providers
under national competition law. The legislation will help prevent
commissioners from taking individual actions or reaching agreements
which restrict competition against the public interest."
Clauses 63 and 64 are intended to ensure good procurement practice
by the NHS Commissioning Board and by GP consortia. It is important
to ensure these clauses achieve the government's aim.
- 5.5 It is unclear whether clauses 60 and
61 which give Monitor functions under the Competition Act 1998
and the Enterprise Act 2002 in relation to activities which
concern the provision of health care services in England,
are also intended to apply to the commissioning of health
services. If so, it may be significant that clause 62(2) states
that the general duties of Monitor (section 52) and the matters
to which Monitor must have regard (section 54) do not apply when
Monitor is carrying out its functions in relation to the Competition
Act and the Enterprise Act. The implications of this should be
6. Arrangements for commissioning of primary
- 6.1 Delivering improvements to the quality
and cost effectiveness of general practice and other primary care
services is critical to the reforms' success. This has probably
been under-emphasised in the debate about the Government's plans.
- 6.2 There is not yet sufficient clarity or
consensus about what in the commissioning arrangements will drive
quality improvement in primary care services. Further clarity
about the structure and approach of the NHS Commissioning Board
will be required here. In particular, what mechanisms will be
available to consortia to enable them to support the Board in
securing continuous quality improvement in primary medical services,
as set out in clause 22/14M of the Bill? We fear consortia would
be underpowered to fulfil this role at present. In addition, what
mechanisms will be available to ensure patient concerns and complaints
about primary care services are reflected in the commissioning
of these services?
7. Effectiveness of the structures proposed
in the Bill which are designed to safeguard existing co-operative
arrangements between services which work across health and social
care boundaries or are intimately linked, and promote the development
of new ones
- 7.1 Health and Wellbeing Boards could be
an important part of the NHS system architecture, with the potential
to plan services and bring the local system together. However
their powers to influence GP commissioners are relatively weak.
In practice, this will depend upon the capacity, resources, relationships
and behaviours developed at a local level.
- 7.2 GP consortia will not necessarily be
co-terminus with local government boundaries. This will add complexity
to the working relationships between Health and Wellbeing Boards
and GP consortia. It will be important for pathfinders to find
effective ways to manage these relationships.
- 7.3 Local Healthwatch will be funded by and
accountable to local authorities, but they will also be responsible
for scrutinising local authority functions in relation to social
care. Safeguards will be needed to ensure that the local authority
does not use its powers of funding and accountability to penalise
a local Healthwatch that is critical of the local authority when
exercising its scrutiny functions.
- 7.4 In addition to safeguarding cooperative
relationships between the NHS and local government, it will also
be important to protect cooperative arrangements between different
parts of the NHS, such as primary, community and secondary care.
As we have already suggested (5.3) the proposed new structures
do not preclude such relationships, but new approaches will be
required to protect and develop them.
8. Cross-area collaboration by consortia in
reconfiguring services effectively where appropriate, and the
ability of the new system to encourage commissioning consortia
to cooperate in this
- 8.1 It is unclear from the Bill what expectations
will be placed on consortia to co-operate when reconfiguring services.
As the Committee has identified, it is likely consortia will need
to collaborate at times to make strategic decisions about large
scale service change. It will clearly be in the interest of GP
consortia to work together effectively. The powers of the Commissioning
Board to intervene in failing consortia will probably be sufficient
without any further legal requirements on consortia being placed
in the Bill.
- 8.2 The Bill places much more emphasis on
individual organisations driving quality improvement in a competitive
market. This is welcomed by providers who want trust Boards to
have the freedom to run their organisations. However some of our
members have concerns about the removal of regional and local
system management and quality improvement support infrastructure.
9. Arrangements for reconciling the potential
conflict between promoting patient choice and enabling consortia
to deliver their clinical and financial priorities
- 9.1 Clause 19 of the Bill is clear that both
the Board (13F) and consortia (14N) will be under duties to enable
patients to make choices about provision and to promote patient
involvement in decisions about their care. But it is not clear
what shape these choices will take and how patient wishes will
be reconciled with GPs' clinical and financial decisions, where
these are not aligned.
- 9.2 In theory, individuals will have a choice
of commissioner in that they will be able to move to another commissioning
consortium by registering with a different GP. In reality, many
will be either unable or unwilling to exercise this right, and
will not see this as a satisfactory mechanism for registering
their concerns about the behaviours and decisions of a consortium
or an individual practice within it.
- 9.3 We would like to see greater clarity
about how patient choice will be enabled in practice.
10. Arrangements for local accountability
and public and patient engagement
- 10.1 We have some concerns about the proposed
mechanisms for ensuring the accountability of commissioning consortia
and the NHS Commissioning Board to patients and the public.
- 10.2 Expectations of what health and wellbeing
boards will be able to deliver, particularly the extent to which
they will strengthen local democratic accountability, appear unrealistic.
Whilst elected local authority members and a representative of
local healthwatch will be Board members, it remains unclear how
the Health and Wellbeing Board will be held accountable by the
- 10.3 The scrutiny function and powers will
rest with local authority, which may discharge these responsibilities
through either new arrangements or existing overview and scrutiny
committees (OSC). We support the continued operation of OSCs,
but it will be important to ensure that scrutiny does not focus
entirely on the proactive decisions taken by commissioners, but
takes a broader perspective.
- 10.4 With the continuation of the local authority
OSC and the creation of the local Health and Wellbeing Board and
Healthwatch, there is the potential for duplication of information
requests to local providers. The government should consider placing
a duty on health and well-being boards, local healthwatch, and
overview and scrutiny committees to avoid duplication of information
and inspection requirements on local providers.
- 10.5 It is vital that commissioning decisions
are informed by systematic feedback and input from patients and
the public. This should include engagement with groups of the
community that do not traditionally use GP services.
- 10.6 Many PCTs have made real progress in
developing effective patient and public involvement in commissioning.
GP commissioning consortia and the NHS Board must build on this
work when they take on commissioning responsibilities. Both the
local GP commissioning consortia and NHS Commissioning Board should
be required to provide a published annual statement of how they
have involved patients and the public in commissioning.
11. Support to consortia and existing commissioning
organisations to form clear and credible plans for debt eradication
and for tackling structural deficits within their local health
- 11.1 The Committee is correct to highlight
that debt eradication and structural deficits present a significant
challenge to the NHS, which current and future commissioning organisations
will need to address. PCTs are at present working with emerging
GP commissioners to develop strategies which will assist them
in delivering the "Nicholson challenge". In many areas,
difficult decisions around service configuration will be necessary
to address this issue adequately.
- 11.2 The government has high expectations
of PCT staff, requiring them to deliver significant efficiency
savings, while helping to establish new commissioning arrangements
and winding up their own organisations, at a time of considerable
personal uncertainty. PCT staff are central to achieving a successful
transition to the new system and this must be recognised at all
levels of government. We regret that we continue to see rhetoric
used in public which is both unnecessary and counterproductive
in this regard.
- 11.3 The steps introduced by the Government
to cluster PCTs to work together are a pragmatic approach to maintaining
effective commissioning capacity during the transition. However
we are concerned that the implementation of such changes must
not be allowed to divert attention to structural change rather
than focusing on delivering the "Nicholson challenge".
Also care must be taken to ensure that proper governance in PCTs
is not disrupted and that effective integration with local government
is not damaged as a result of the clustering.
17 Sir David Nicholson, NHS Chief Executive, giving
evidence to the Public Accounts Committee's evidence session on
Health Landscape Review, 25 January 2010 (Q209). Back
Liberating the NHS: Legislative framework and next steps (15
December 2010). Paragraphs 6.87-6.89. Back