A major loss of local accountability and control, coupled with a massive expansion of centralised powers, and the danger of a new wave of lucrative NHS contracts to be awarded without competition are among the main features of the government’s controversial Health and Care Bill to drive another major top-down reorganisation of the NHS.
Fewer local bodies, less local voice
The Bill would abolish local Clinical Commissioning Groups, 207 of which were established back in 2012-13, with 106 still functioning in April 2021, and reduce “local” control over the NHS in England to just 42 “Integrated Care Systems” (ICSs), some of which would cover very wide areas, and populations of up to 3.2 million.
In preparation for this, CCGs in many parts of the country have already been systematically merged into bigger, less accountable and more unwieldy bodies, leaving only the hollow pretence of local voice for local communities and council scrutiny committees, while decisions are taken by new, remote bodies with little or no concern for local health needs and inequalities.
ICSs would consolidate these mergers, leaving the NHS with less local accountability and fewer “local” bodies deciding policy than any time in the last 50 years.
To make matters worse the new ICSs would each be collectively tied to a tightly limited single pot of allocated funding after a decade of austerity and falling real terms funding – and at a time when NHS England has already begun cracking the whip for tighter financial controls, and therefore looking for cuts to balance the books.
Health Secretary Sajid Javid would have a veto over the appointment by NHS England (and over any attempted subsequent removal) of all 42 ICS Board chairs, who then get the final say on the appointment of other board members.
On recent form, a rampant expansion of cronyism into the new bodies seems inevitable.
Nor is there any explicit requirement that the Boards must meet in public or publish their board papers, although NHS England has stated their preference for this: nor is there any commitment, given the wide geographical spread of some ICSs, for meetings to be made accessible online.
And while local authorities have been weakened by a decade of brutal cuts in spending, and get just one seat on each ICS, the private sector could find itself gaining a stronger voice. A vague phrase in the Explanatory Notes on the Bill adds that beyond the minimum five Board members “local areas will have the flexibility to determine any further representation.”
In one of the early ICS shadow boards (Bath, Swindon and Wiltshire) a Board seat with voice has been given to Virgin, raising the question of how many additional private companies and management consultants might be invited to join the decision making at Board level.
The GP representation on the Board could, under the Bill’s formulation potentially be a GP working for Centene, Virgin or another corporate provider that has bought up GP practices.
Powers on reconfiguration
On hospital reconfigurations – a lingering concern in many parts of the country, the Bill would give new powers to the Secretary of State to intervene directly at any stage, either to block local plans or indeed to demand (“be the catalyst for”) a reconfiguration – possibly closing, merging or downsizing local hospitals and services.
The Explanatory Notes state that the current powers of local authorities to refer plans that they find controversial to the Secretary of State would be “amended” (rather than scrapped as February’s White Paper proposed), and the Independent Reconfiguration Panel which is supposed to examine the case for contested local changes (and was also set to be abolished) will also remain in place.
However the main player would be the Health Secretary, and the extent to which there remains any local control is left to his discretion.
138 new powers
These local interventions are only one aspect of a wide-ranging extension of power and control in the hands of the Health Secretary. According to The Independent’s health specialist Shaun Lintern, the Bill would create 138 new powers – including seven allowing the Secretary of State to effectively rewrite the law in future through secondary legislation.
This comes less than ten years after Andrew Lansley’s 2012 Health and Social Care Act, which was forced through by David Cameron’s government with the backing of the Liberal Democrats.
That Act entrenched a regime of competitive tendering, resulting in a sharp increase in privatisation of community health and other clinical contracts, while it also encouraged Foundation Trusts to massively increase their treatment of private patients.
But as NHS England has attempted to make the system work, key parts of the 2012 Act have simply been ignored: the new Bill for example includes (Clause 39) repeal of the requirement in the Act for all NHS Trusts to become Foundation Trusts, and notes “NHS Trusts still exist, and this section has never been commenced.”
Scrapping Section 75 – but no end to privatisation
The Bill now proposes to go further and repeal the hated Section 75 of the 2012 Act, and the accompanying regulations which require Clinical Commissioning Groups to put services out to tender. However there is plenty of scope for further privatisation in the new Bill.
David Hare, chief executive of the private sector’s lobby group the Independent Healthcare Providers Network, has pointed out that despite the attempts in the 2012 Act to make it compulsory, “the reality is that competitive tendering has always been a minority sport in the NHS, with just 2% of NHS contracts by value let by competitive tender in recent years….”
Private sector analyst William Laing back in February conceded the White Paper could mean that contracting out of community health services might “grind to a halt,” affecting firms like Virgin Care, Serco and Mitie: but he argued it was unlikely to have much impact on the big money contracts – mental health, elective care and diagnostic services, where the NHS lacks sufficient in-house capacity.
So axing tendering does not end much privatisation, if any. And Sajid Javid, the austerity-mad former Chancellor described by the Times as “a Thatcherite small-state Conservative” seems likely to be an even bigger fan of privatisation than Matt “no privatisation on my watch” Hancock.
Regulation of contracts
Scrapping Section 75 also raises the question of what new system will apply to regulate the awarding of contracts. There is no clear mechanism or commitment to prevent more of the scandalous behaviour that became normalised during the pandemic – awarding contracts worth tens of millions to Tory donors and cronies without competition.
On recent form, who would trust the government to uphold standards? Or indeed NHS England, which has spent the last seven years developing workarounds to avoid competition while still widening privatisation.
Most contracting out now takes place through much larger “framework contracts,” which list approved providers from whom commissioners or trusts can choose to award contracts without any competitive process.
The most conspicuous of these is the 4-year £10 billion framework contract through which a long list of private hospitals and clinics make themselves available to treat NHS-funded patients from the waiting list that has been swollen by a decade of austerity topped off by the capacity cuts following the Covid pandemic.
National Health Executive magazine explains that there is to be “a new procurement process, removing the competitive tendering element: “The nature of what this entails has not yet been discussed, but would involve the end of CCGs.”
Regulation of professions
The Secretary of State’s new powers in the Bill also include the ability to abolish an individual health and care professional regulatory body or remove a profession from regulation “where regulation is no longer required for the protection of the public.”
The suggestion in the White Paper that such changes to professional regulation might be made in pursuit of “financial and efficiency savings” by reducing the number of regulators is an alarming indicator of the skewed priorities of the government.
And the suggestion that some professions could be removed from regulation is bound to stoke fears about deregulation, and that trusts may be driven to replace professional staff with less qualified and lower-paid staff, with consequent undermining the quality of health care.
Transition from CCGs to ICSs
It is inevitable that in the process of merging and abolishing CCGs, replacing them with far fewer commissioning bodies, there will be months or years of dislocation and uncertainty for CCG staff, a widespread loss and reorganisation of jobs, costing many millions in redundancy payments, and a long-running scramble to secure the remaining posts.
There are dangers in this process that equality issues are sidelined and that the resultant new system takes a prolonged period to establish itself. Huge amounts of valuable time, energy, resources of senior management and staff in both commissioning and provider bodies will be diverted from the pressing concerns of the growing crisis in A&E, the huge backlog of elective cases waiting for treatment and the development of a credible workforce strategy for the NHS and social care.
The NHS Confederation’s spokesperson on ICSs Dame Gill Morgan has warned that the proposals could bog down NHS bosses in interminable meetings, creating a “bureaucratic nightmare.”
The continued under-funding of both NHS and social care also preclude any possibility of significant improvement in services from this reorganisation, which takes place in a period of renewed austerity and is not backed by additional resources in terms of staff or funding.
Nothing in the Bill provides any convincing evidence that it will yield any positive results, let alone any sufficient to make the costs of this major upheaval worthwhile.
Fighting the bill
The fight to stop the Bill opening up the NHS to crony contracts and crushing any local voice or accountability has to begin with rejecting its Second Reading on July 14: but it must also look to win broad support for amendments that limit the damage that can be done.
The Lowdown will put forward a longer list of key topics and suggestions for amendments in a follow-up article online. Keep up to date with the campaigning and analysis of the Bill at https://lowdownnhs.info
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