As the Health and Care Bill moves into the committee stage – where the detail of the bill will be closely examined, many people from different points of view are coming to the conclusion that it has deep flaws.
Here are some of the main points raised by commentators, campaigners and trade unions.
It does not address the major problems confronting health and care systems after a decade of austerity funding – and has nothing to say about social care. It will create disruption at a time the NHS needs to focus on recovery after Covid.
It removes some important aspects of the Health and Social Care Act 2012 and associated regulations – but it does not prevent or reverse privatisation, nor does it extend to services which should also be delivered by NHS staff – cleaning, portering, catering, etc.
It doesn’t establish the NHS as the default provider when existing contracts come to an end. Nor does it prevent competitive tendering, or the extension of “framework contracts” which can award contracts without competition or tender to private companies (or other providers) from a pre-approved list.
There is no proper protection against more crony contracts awarded without proper oversight. Nothing in the Bill would prevent more trusts – or ICBs – setting up subsidiary companies to dodge taxes, evade scrutiny or undermine terms and conditions of staff.
The Bill gives extensive new powers to the Secretary of State, but drastically reduces the voice of local communities. Making every NHS organisation inform the SoS every time they think about changing a service is a bureaucratic nightmare that should be dropped. Other new powers include taking decisions over professional regulation that are currently controlled by professional bodies.
After five years of top-down pressure to merge Clinical Commissioning Groups (CCGs) created by the 2012 Act, the Bill abolishes the remaining CCGs, leaving England’s NHS controlled by just 42 Integrated Care Boards (ICBs) – the fewest “local” bodies since NHS reforms began almost 50 years ago.
It could potentially allow people associated with the interests of private companies to sit on ICBs and Integrated Care Partnerships but does not require health workers, directors of public health, patients, or public to be represented. This leaves the danger that strong vested interests such as a large Foundation Trust could dominate – and services such as mental health or community care could be pushed to the sidelines.
The single local government seat per ICB would leave no real voice for local authorities at the “place” level. Indeed the Bill makes no reference to “place” and has no provisions to implement NHS England’s repeated promises of delegation of decision-making to ‘place’ level. Instead, each ICB would set its own constitution.
The Bill also proposes to change the law to remove the legal requirement to assess patients prior to discharge. While some pilot schemes have deployed additional resources to facilitate “discharge to assess” – and there were specific reasons for suspending the law during the pandemic – the general picture is of grossly inadequate community, primary care, and social care services raising a real risk of patients in many areas merely being dumped without support.
The Bill curbs some of the “freedoms” of Foundation Trusts (FTs) and scraps what proved to be unachievable requirements of the 2012 Act for all NHS trusts to become FTs. But this leaves FTs outside of any “integration” process – not subject to direction by the ICBs or by NHS England. It also leaves the 2012 Act provision allowing FTs to expand their private patient and non-NHS income up to half of the FT’s total revenue without any proper scrutiny.
This is an obstacle to genuine integration of services since some FTs would be free to go their own way, and focus on non-NHS activity at a time when NHS resources are stretched to the maximum. Some FTs, like Oxford University and Royal Marsden are already doing so.
A new NHS Payment scheme is proposed in the Bill to replace the current national tariff of prices for patient care with locally-negotiated prices – which poses the danger of a postcode lottery for patient care, with some ICBs leading a race to the bottom on quality, and a revival of price based competition.
Some restrictions should be put into the Bill to ensure a genuine move away from market-based mechanisms like payment by volume and back to block contracts based on nationally-decided costings. Competition based on price should not be permitted.
The scale of the Tory majority makes outright defeat of the Bill out of the question, so the focus for ongoing campaigning has to centre on making the case for amendments to tackle the main negative elements of the Bill.
Whilst many concerns will be raised as the Bill progresses, campaigners need to prioritise issues that can attract a wide range of support.
The passage of the bill
In Parliament Labour oppose the bill, but there are unlikely to be enough Tory rebels for it not to pass. Attempts to amend it are being made and could attract support from some Tories and within the Lords, especially as the government is keen to push it through quickly, opening up some opportunities for concessions.
The bill entered the Commons for its committee stage on 7 September, where each clause is examined. Changes will be presented for debate and votes in the Report stage, before the Third reading and its passage into the Lords where the process is repeated.
Here are some of the areas where amendments are likely to be sought.
Competition procurement and privatisation
NHS to be default provider as any existing outsourced contracts with Trusts or CCGs expire: only where ICS can demonstrate NHS providers unable/unwilling to provide services may services be outsourced or re-tendered.
To avoid a race to the bottom on quality (as happened with hospital cleaning in the 1980s) only companies paying at least NHS pay, terms and conditions should be allowed to bid for contracts.
Duties of Secretary of State:
Those who campaigned against the Lansley Bill will be in favour of the SoS having powers over, and being held directly responsible for the NHS, as was clear before 2012. But not all of the many new powers are appropriate, and there must be proper parliamentary oversight of their use.
Any new powers must be coupled with the restoration of the pre-2012 duties of the Secretary of State, which, given the new structure of the NHS, should also apply to NHS England and ICBs, through which he carries out these duties.
Trusts and Foundation Trusts
Amendments to the 2012 Act should put FTs on equal status with NHS trusts (a level playing field), make them subject to direction in the same way, reimpose the cap on non-NHS income, and require both FTs and NHS Trusts to publish income AND EXPENDITURE details of any private patient activity to expose the real cost to the NHS.
Loss of local accountability
ICB chairs, who under the Bill would have considerable powers, but would be appointed by NHS England subject to approval by the SoS, should instead be ELECTED in a system analogous to Mayors or Police and Crime Commissioners.
ICBs and Partnerships must be barred from including any private sector representatives on their Boards or decision-making roles. ICB non executives must be appointed through a fair process focused on respecting diversity and overseen independently, and include mental health, public health and patient representation.
The Bill needs to be explicit that ICBs and ICPs must meet in public, make arrangements for remote access, publish all the papers in good time and they must be prevented for using any argument of commercial confidentiality to avoid providing information.
Funding allocations to places and providers must be subject to local democratic challenge, and local access to the full range of NHS services should be guaranteed to all communities, with any change to local services subject to oversight by each Council’s Health Scrutiny function.
New powers over professional regulation should not be given to the Secretary of State unless the Bill imposes some stronger oversight by parliament and some test to apply as to the overall value of any change.
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