A New Threat to CCGs, Hospitals and Accountability

We need a regime for financially failing Trusts – but this is not it.

The government used the existing regime in Lewisham and found that the law only applies to the failing Trust, making their unjust and unpopular plans illegal. They now want to change the law to ensure that any future Trust Special Administrator process can deal with the whole health economy as well as the failing Trust.

Justice for Lewisham Hospital

The new plans, slipped into the Care Bill and going through the Commons now, have huge implications for Clinical Commissioning Group freedoms and patient and public participation and involvement. The rules are unchanged from the previous regime (bad enough in itself). It allows for a rapid set of decisions across a potentially wide geographical area, enabling the Trust Special Administrator to reconfigure large areas at a stroke. It will include financially healthy as well as unhealthy Trusts.

The amendment is a threat to the NHS in general and accountability in particular.

Firstly, it looks better, because the time for the Trust Special Administrator is extended by giving 65, rather than 45, working days to produce the draft report and allowing 40, rather than 30, working days to undertake consultation on that report.

In the rest of the amendment, the restriction of accountability is draconian:

  • No referral to Scrutiny
  • No patient and public involvement – at all – is needed: the statutory obligations of commissioners to involve and consult patients and the public in planning and making service changes do not apply in respect of the trust special administration regime.
  • NHS England can decide on the Trust Special Administrator’s plan if local CCGs cannot agree. NHS England would have the final say.

So the restrictions on CCG decision-making are extreme:

A clinical commissioning group that commissions services from a successful NHS trust can now see local services removed, even if that clinical commissioning group considers those services to be essential.

But anyway this amendment may not work because:

Neither a CCG nor a Foundation Trust is subject to the direction-making powers of the Secretary of State. It is unclear how they are to be legally required to carry through any decision which is made within a special administration process relating to another body.

Nor is it clear what happens if the commissioners do not wish to commission services against the model that the special administrator has proposed.

We need to fight against these plans which will enable rapid and virtually unchallengeable reconfiguration across the country, cutting across CCG and public collaboration and involvement.

We need to find another way.