While Prime Minister Johnson seeks pre-election voter popularity by reeling off a series of promises of “extra” funding that falls short of reversing the real-terms funding freeze that has squeezed the NHS for the past nine years, NHS England has drawn up a shopping list of reforms it wants pushed through Parliament in new legislation.

The Guardian report flagging these up is optimistically headed “NHS privatisation to be reined in under secret plan to reform care.”

It states that the proposals, drawn up by NHS England and NHS Improvement after protracted engagement with various organisations and individuals, are expected to feature in the Queen’s speech next month.

The most substantial proposals centre on repealing section 75 of the 2012 Health & Social Care Act and the sections establishing the Competition and Markets Authority’s (CMA) roles in the NHS, and going further to remove the commissioning of NHS healthcare services from the jurisdiction of Public Contract Regulations 2015, and abolish Monitor’s specific focus and functions in relation to enforcing competition law.

End compulsion to tender

Between them these changes would remove the compulsion to put NHS healthcare services over £615,000 a year out to competitive tender. As such this proposal has been welcomed by UNISON’s Head of Health Sara Gorton, who said:

“This is long overdue. These proposals would protect the NHS from the worst excesses of privatisation and end the situation where different parts of the health service have had to compete against each other.”

UNISON has joined with 17 other organisations including NHS Providers and the Local Government Association in signing a letter calling for a Bill to be included in the Queen’s Speech, which “should be tightly focused on the issue of care integration to foster collaboration within the sector, including removal of section 75 of the 2012 [Health and Social Care] Act with its unnecessary procurement processes.”

But while they are welcome as far as they go, the proposals on Section 75 and competition set out by NHS England and NHS Improvement are for many seen as a starting point rather than a satisfactory conclusion.

They would not reverse any of the privatisation that has already taken place, or prevent commissioners, NHS England or NHS trusts from choosing to put further services out to tender.

Not far enough

The proposals certainly don’t go as far as Shadow Health Secretary Jonathan Ashworth feels is necessary. Ashworth led the unsuccessful opposition in Parliament to regulations laying the basis for Integrated Care Partnership contracts, and he is concerned now about the limitations and implications of the rest of the proposed Bill, which heads along similar lines.

He told the HSJ:

“We want to see the Lansley Act repealed, we want to restore a public universal NHS. We want to end fragmentation, to see care delivered on the basis of planning, not on the basis of markets and competition.”

The GMB union, which has also campaigned for the removal of Section 75 and its regulations, also argues that the new Bill does not go far enough.

Other proposals put forward by NHS England include:

– Some apparent concessions on local accountability in an attempt to win wider acceoptance of  new Integrated Care Systems – even though these would be functioning outside the existing legislation:

“NHS England and NHS Improvement should develop statutory guidance on governance of ICS joint committees. To increase transparency, ICS joint committees should not only meet in public, as recommended by the Select Committee, but also hold an annual general meeting, and publish an annual report. Their decisions would also be subject to scrutiny by Local Authority Overview and Scrutiny Committees.”

– Tariff changes and a new procurement regime to “guard against the risk of introducing competition solely on price as opposed to quality.”

– A new ‘triple aim’ for NHS commissioners and providers alike, of “better health for the whole population, better quality care for all patients and financially sustainable services for the taxpayer.”

– Allowing NHS commissioners and providers to form joint decision-making committees on a voluntary basis, “rather than the alternative of creating ICS as new statutory bodies, which would necessitate a major NHS reorganisation.”

– Local authorities should be able “actively encouraged to join ICS joint committees” with full membership – as long as they do not interfere on decisions over cutbacks and closures (“not introducing a new local government veto over the NHS’s discharge of its own financial duties”)

– Changing the 2012 Act to support the creation of integrated care providers as NHS trusts, and to ensure that “only statutory NHS providers should be permitted to hold NHS Integrated Care Provider contracts.”

A number of NHS England’s initial proposal have now been dropped, most notably “NHS Improvement’s proposed power to direct mergers between Foundation Trusts”, which was rejected by the Select Committee, NHS Providers and the NHS Confederation, and “not supported by the NHS Assembly”.

It’s a mixed bag, in which only the retreat from further privatisation is explicit. Campaigners would be critical of many of the other proposals.

Whether the Bill even appears in the Queen’s Speech, and whether it might be passed through the Commons, given the government’s lack of a majority and the quite deliberate stoking up of opposition anger as Johnson has tried to force an early election that could enable him to push through a no-deal Brexit on October 31, is an unanswered question.

No chance in Commons

Jonathan Ashworth has argued that the government “has got no chance” of getting the NHS Integration Bill through Parliament:

“I’m not convinced [health secretary] Matt Hancock will go as far as what is needed to provide the care that patients deserve. The Conservatives have lost their majority and, as things stand, I think Mr Hancock has got no chance of getting any legislation through at the moment.”

The invitation to NHS England to take the lead in formulating the scope of legislation to deal with the fragmentation and contracting out of services entrenched by Andrew Lansley’s 2012 Health and Social Care Act first came from Theresa May in the summer of 2018. Outline proposals were included in the NHS Long Term Plan published back in January.

But since then many aspects of the situation, and most of the cabinet have changed: last November Health Secretary Matt Hancock made clear the government would only proceed if Labour would effectively sign off on the NHS England proposals without amendment or addition:

“Crucially… if we bring this bill forward and people add things to it that don’t work, or cost too much money, or are going to cause us problems, then we may have to drop the bill altogether. And it will be the people bringing forward additional baubles whose fault that would be, not mine.”

It seems that the NHS Integration Bill, like so many other policies in these uncertain times, is far from a done deal, and certainly not the far-reaching package of legal changes most campaigners want to see.

Unlike most of Johnson’s announcements, which have aimed to lure voters with the dubious promise of extra cash, these legal changes will be understood by few people, and are unlikely to grab the attention or support of many voters.

That’s why, even if he does get the nod to push it forward, Hancock is clearly preparing to duck and run if he can’t get the support he wants, and faces too many awkward questions.

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