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NHS Long-term Plan: legislative proposals Contents

Introduction

Our inquiry

Our previous inquiry into ‘Integrated care: organisations, partnerships and systems’

1.In June 2018, we published a report following our inquiry into ‘Integrated care: organisations, partnerships and systems.’1 We concluded that while positive progress towards collaborative working and integrated care had been made within the constraints of the current legislative framework, this required cumbersome workarounds, and led to local areas operating with significant risks in terms of their governance and decision-making. We concluded that ultimately “the law will need to change to fully realise the move to more integrated, collaborative, place-based care.”2

2.In coming to this view, we were clear that “the purpose of legislative change should be to address problems which have been identified at a local level which act as barriers to integration in the best interest of patients”.3

3.We also heard during that inquiry that repeated top-down reorganisation of the health service, including the changes made by the Health and Social Care Act 2012, meant there was little appetite from local leaders of health and social care services for major legislative reform. We therefore recommended that the Department of Health and Social Care and national bodies should adopt an evolutionary, transparent and consultative approach to determining the future shape of health and care, with proposals being led by the health and care community. We further recommended that Parliamentarians across the political spectrum should work together to support the legislative changes to facilitate evolutionary change in the best interests of those who rely on these services.

The response

4.The NHS Long Term Plan was published on 7 January 2019.4 In setting out a blueprint for the development of the NHS over the next decade, the Plan made clear that changes to the law were not required for the plan to be implemented. However, it stressed that “amendment to the primary legislation would significantly accelerate progress on service integration, on administrative efficiency, and on public accountability.”5 The legislative proposals put forward were a direct response to the formal request from this Committee and from the Prime Minister and were developed by NHS England in discussion with NHS colleagues, based on the views of clinicians and NHS leaders, as well as national professional and representative bodies.6

5.The provisional list of proposed legislative changes in the Long-Term Plan were developed and published for consultation by NHS England and NHS Improvement in February 2019 in the document ‘Implementing the NHS Long Term Plan: Proposals for possible changes to legislation’.7 Nine groups of suggested legislative changes were set out in further detail with requests for responses to a short survey or more detailed feedback by 25 April 2019. The proposals are set out in Table 1 below. In response NHS England and NHS Improvement received:

NHS England and NHS Improvement have shared the vast majority of the written responses with us as well as key findings from the quantitative responses they received via Citizenspace. We are grateful to have had access to this extra source of evidence for our own inquiry.

Our inquiry

6.We launched our inquiry into the ‘NHS Long Term Plan: legislative proposals’ with a call for written evidence on 1 March 2019. The first phase of this inquiry is focused on the proposals published by NHS England and NHS Improvement, particularly in light of our view that the legislation should be designed expressly to remove barriers to integrated care in the interests of patients and should be led by the health and care community. In scrutinising the legislative proposals put forward to support the implementation of the NHS Long Term Plan we aim to assess the proposals from a cross-party Parliamentary perspective and set out views which we intend should be helpful in working them up into a draft bill. When such a draft bill is, in due course, laid before Parliament, we plan to carry out the second phase of this inquiry, conducting more detailed pre-legislative scrutiny of the proposals.

7.We received just under 60 written submissions providing a rich body of evidence which has informed this report and the questions we put to those who gave oral evidence to the committee. We held four oral evidence sessions, during which we heard from stakeholders across the health and care community, including campaign groups, professional bodies and trade unions, representatives of NHS bodies including commissioners and providers and those with experience of delivering integrated care, lawyers, academics, think tanks and representatives of staff and patients.

8.We are very grateful to all those who gave written and oral evidence to us. We are also grateful to our two specialist advisers, Professor Pauline Allen of the London School of Hygiene and Tropical Medicine and Nicholas Timmins, Senior Fellow at The King’s Fund, for their advice and guidance throughout our inquiry.8

Table 1: NHS England and NHS Improvement’s legislative proposals

Category

Proposed changes

Promoting collaboration

NHS England and NHS Improvement propose that:

  • the CMA’s function to review mergers involving NHS foundation trusts should be removed;
  • NHS Improvement’s competition powers and duties should be removed; and that
  • the need for NHS Improvement to refer contested licence conditions or National Tariff provisions to the CMA should be removed.

Getting better value for the NHS

NHS England and NHS Improvement propose that:

  • the regulations made under section 75 of the Health and Social Care Act 2012 should be revoked and the powers in primary legislation under which they are made should be repealed and replaced by a best value test; and
  • arrangements between NHS commissioners and NHS providers are effectively removed from the scope of the Public Contracts Regulations and that NHS commissioners are instead subject to a new ‘best value’ test when making such arrangements, supported by statutory guidance.

Increasing the flexibility of national NHS payment systems

NHS England and NHS Improvement propose that legislation should:

  • allow national prices to be set as a formula rather than a fixed value, so that the price payable can reflect local factors;
  • provide a power for national prices to be applied only in specified circumstances, for example allowing national prices for acute care to cover ‘out of area’ treatments but enabling local commissioners and providers to agree appropriate payment arrangements for services that patients receive from their main local hospital in accordance with tariff rules;
  • allow adjustments to provisions within the tariff to be made (subject to consultation) within a tariff period, for example to reflect a new treatment, rather than having to consult on a new tariff in its entirety for even a minor proposed change.

NHS England and NHS Improvement also propose that:

  • once ICSs are fully developed, the power to apply to NHS Improvement to make local modifications to tariff prices should be removed; and
  • primary legislation should be changed so that the national tariff can include prices for ‘section 7A’ public health services.

Integrating care provision

NHS England and NHS Improvement propose that:

  • the law should be clarified so that the Secretary of State can set up new NHS trusts to deliver integrated care across a given area.

Managing resources better

NHS England and NHS Improvement propose that:

  • NHS Improvement should have targeted powers to direct mergers or acquisitions involving NHS foundation trusts, in specific circumstances only, where there are clear patient benefits; and
  • NHS Improvement should have powers to set annual capital spending limits for NHS foundation trusts, in the same way that it can currently do for NHS trusts.

Every part of the NHS working together

NHS England and NHS Improvement propose that:

  • organisations [ CCGs and NHS trusts and foundation trusts] should be given the ability to create joint committees;
  • there should be new provisions relating to the formation and governance of these joint committees and the decisions that could appropriately be delegated to them;
  • restrictions should be removed so as to allow the designated nurse and secondary care doctor appointed to CCG governing bodies to be clinicians who work for local providers; and
  • express provision should be made in legislation to enable CCGs and NHS providers to make joint appointments.

Shared responsibility for the NHS

NHS England and NHS Improvement propose that:

  • a new shared duty should be introduced that requires those organisations that plan services in a local area (CCGs) and NHS providers of care to promote the ‘triple aim’ of better health for everyone, better care for all patients, and efficient use of NHS resources, both for their local system and for the wider NHS.

Planning our services together

NHS England and NHS Improvement propose that:

  • NHS England should be given the ability to allow groups of CCGs to collaborate to arrange services for their combined populations. We also propose that CCGs should be able to carry out delegated functions, as if they were their own, to avoid the issue of ‘double delegation’, and that groups of CCGs should be able to use joint and lead commissioner arrangements to make decisions and pool funds across all their functions;
  • provisions are made to enable NHS England to jointly commission with CCGs the specific services currently commissioned under the section 7A agreement or to delegate the commissioning of these services to groups of CCGs; and
  • that legislation is changed to enable NHS England to enter into formal joint commissioning arrangements with CCGs.

Joined up leadership

NHS England and NHS Improvement propose that both organisations should be brought together more closely beyond the limits of the current legislation, whilst clarifying the accountability to Secretary of State and Parliament, by either:

  • creating a single organisation which combines all the relevant functions of NHS England and NHS Improvement (including Monitor and the TDA); or by
  • leaving the existing bodies as they are, but provide more flexibility to work together, including powers to carry out functions jointly or to delegate or transfer functions to each other, and the flexibility to have non-executive Board members in common.

1 Health and Social Care Committee, Integrated care: organisations, partnerships and systems, Seventh report of Session 2017–19, HC 650

2 Ibid, paras 295 and 296

3 Ibid, Para 299

4 NHS England, The NHS Long Term Plan, January 2019

5 NHS England, The NHS Long Term Plan, January 2019

6 NHS England, The NHS Long Term Plan, January 2019

7 NHS England and NHS Improvement, Implementing the NHS Long Term Plan: Proposals for possible changes to legislation, March 2019

8 Professor Pauline Allen holds a series of research grants from the Policy Research Programme of the NIHR. The following research concerns issues of relevance to the inquiry: 1. Evaluation of New Models of Care Programme: Professor Katherine Checkland and Professor Matt Sutton of Manchester University (Principal Investigators) in which she is a co-investigator.
2. National Policy Research Unit in Health and Social Care Systems and Commissioning: Professor Stephen Peckham of Kent University is director. Professor Allen is co director with Professor Kath Checkland.
Nick Timmins, Senior Fellow, The King’s Fund. Mr Timmins’ Pecuniary interests is that he is retained by the King’s Fund two days a week, and undertakes work for others, chiefly think tanks, with some occasional journalism, on a case by case basis. He is also an honorary fellow of the Royal College of Physicians..



Published: 24 June 2019