1Proposals for legislative change: main findings
9.In our report on integrated care last year, we acknowledged that the law needed to be amended to support the goal of greater integration of health and care. The Health and Social Care Act 2012 is lodged in the minds of those working in the NHS and the wider health and social care system as well as Parliamentarians as a reminder of the destabilising dangers of wholesale system churn. Given those dangers as well as the reality of a hung Parliament, we were of the view that, in keeping with the principles outlined within the NHS Five Year Forward View, legislative change should be carried out in an evolutionary and consultative way, with a focus on removing legal barriers that stop, or impede, those working in health and social care from collaborating and integrating services around their patients. We heard that broadly speaking NHS England and NHS Improvement’s proposals are a pragmatic set of changes that have the potential to help reduce some of the barriers to joint working for those on the front line of health and care in England. They are limited in scope because they also recognise the challenges of getting legislation through a hung Parliament.
10.We warmly welcome, at least in principle, proposed changes that seek to extend the range of options and flexibilities available for those working across local health and care economies who are trying to integrate their services (the creation of new NHS trusts for integrated care), manage their resources effectively (flexibilities to agree prices locally) and take decisions jointly (the establishment of joint committees). We are supportive of the intent behind NHS England and NHS Improvement’s proposals to promote collaboration, which will see the law change to give greater weight to collaboration as an organising principle that underpins how the NHS is planned and managed. We agree that collaboration, rather than competition, is a better way to manage the rising demands on health and social care, improve joined up care for patients and deliver better value for taxpayers. The current mechanisms for competition in the NHS continue to add costs and complexities in too many areas without corresponding benefit in return for patients and taxpayers. We do, however, recognise the role that choice can play in raising standards and encouraging innovation, and do not seek to return to what one witness described as an ‘airless room’ which excludes all other providers.9
11.Therefore, we broadly support NHS England and NHS Improvement’s proposals to:
- repeal section 75 of the Health and Social Care Act 2012, and revoke the regulations made under it;
- remove the Competition and Market’s Authority’s role in mergers of foundation trusts;
- ease the burden procurement rules have placed on the NHS, ensuring commissioners have discretion over when to conduct a procurement process, with the inclusion of a ‘best value’ test; and
- allow greater flexibility locally over payment systems.
12.The NHS is a mixed quasi market, comprised of statutory and non-statutory services. The legislative proposals do not change this. To do so may require potentially more fundamental and far reaching reforms that would constitute another top-down reorganisation of the NHS. Our view is that reform to this degree is not warranted at this time. Also, as we said in our last report, a diverse health and care economy can be an enabler of integration, rather than a barrier to it. However, as market forces will continue to operate in the NHS, although to a lesser extent, it is important that the proposals put forward should not allow deregulation of the market without including alternative regulatory mechanisms. Careful oversight of these changes to competition rules is important to ensure the interests of patients and taxpayers are protected. In particular, while welcome in principle, much more detail is needed on how a ‘best value’ test will operate, including the definition of value that will underpin such a test. We support a test that embraces a broad definition of public and social value, but it is important that the design and implementation of this test does not create a more onerous set of arrangements than procurement rules currently pose. We also heard concerns about the operation of ‘best value tests’ in local government which, though different, go by the same name.
13.NHS England and NHS Improvement’s proposals continue, in many respects, the direction of travel that has been established since the NHS Five Year Forward View was published in October 2014. That is towards a more integrated, collaborative, place-based approach to the planning and delivery of health and care, which breaks down traditional divides that have characterised the NHS since its inception in 1948. The Forward View clearly acknowledged that, while the NHS is a national health service, England is too diverse and complex for a one-size fits all approach. Local autonomy and leadership have been a core feature of the changes that have being taking place across the health and care system over recent years.10
14.That is why some witnesses were concerned by the degree of centralisation that could occur as a result of these changes. This worry was expressed by several witnesses across the health and social care community, including leaders of local providers, commissioners and local systems. On balance, we believe that merging NHS England and NHS Improvement will benefit those working on the NHS front line, who have experienced conflicting messages from the two bodies. However, this will further centralise power. In addition, increasing NHS Improvement’s powers over foundation trusts’ decisions to merge or spend capital, for example, greatly extends the ability of the NHS at a national level to make decisions about the way local services are configured and how local resources are managed, especially if the CMA’s role is removed and NHS England and NHS Improvement merge. While we agree that the NHS at a national level may need to intervene as a last resort to address disputes within a local system, our view is that the proposals give too much power to the NHS at a national level. We think that these two proposals need to be reviewed to reflect those concerns.
15.We are also unclear how giving the Secretary of State the ability to transfer, or require the delegation of, functions from one arms-length body to another will be used to support integrated care. We would like to see more detail on how this will improve joined up care and value for patients.
16.NHS England and NHS Improvement’s proposals in many cases continue the direction of travel towards a more integrated collaborative and placed-based system. While there is broad support for that direction of travel, it remains too NHS-centric rather than looking at the wider system with which it seeks to integrate. One potential unintended consequence of some of the proposed changes (changes to procurement, the ‘best value’ test and joint committees) is that the NHS could become an unresponsive, self-serving monopoly - a criticism that was made of previous NHS structures such as district health authorities.11 The Department of Health and Social Care, NHS England and NHS Improvement should be clearer about the roles local government, the voluntary and community sector and independent providers should play in the future of the NHS.
17.In particular, organisations from across the health and care community have expressed concern that local government was not part of the main narrative articulated in the NHS Long-term Plan.12 These proposals do little to address that criticism. Local authorities and Health and Wellbeing Boards are crucial if integrated care systems are going to result in approaches that focus on population health and are truly place-based. More work is needed across several of the proposed changes to work through the implications for local authorities (e.g. procurement rules and local government’s involvement in joint committees) to ensure that barriers to local authority involvement in the planning and delivery of services are removed.
18.In the interests of not imposing another top-down reorganisation on the NHS, we are of the view that now is not the right time to establish all integrated care systems as separate legal entities. To do so would risk undermining some of the progress local systems have made to build relationships and ways of working together. However, we are concerned that the governance and accountability of integrated care systems, and the regional tiers of NHS England and NHS Improvement that sit above them, are complex, slow and weak. We recommend that all STPs and ICSs should meet the highest standards of openness and transparency in the conduct of their affairs by holding meetings in public and publishing board papers and minutes. Transparency is not as good as formal accountability, but to avoid another top-down reorganisation of the NHS, we believe it is the most pragmatic way forward.
10 NHS England, NHS Five Year Forward View, October 2014
12 See paragraphs 107 and 108
Published: 24 June 2019