Our health our health services

SHA policy Wales

Response to Green paper: Our health our health services

1. Purpose

This paper provides the response of the Socialist Health Association (Cymru Wales) to the Green Paper on Health issued by Welsh Government in July 2015.

2. Background

The Green paper was issued to seek views on any action needed either to bring the (Welsh) legislation up to date or to effect other changes that will improve the quality of the service given by the Welsh NHS. The paper notes three lines of defence against poor practice – the staff employed by the NHS, the leadership /governance of the NHS, and the inspection and regulatory regimes. The paper also emphasises a prudent approach to care that seeks to change the emphasis away from hospital treatment and towards prevention, follow up, and the co-production of health.

The Green Paper looks at two themes – quality and governance, (that also encompasses opportunities for co-production). It poses a series of questions to which it seeks answers.

3. SHA Cymru Wales response

Our response is given in two parts. First we set out our broad position on the NHS for Wales. Second the questions that are addressed are those that seem especially relevant or are ones where SHA Cymru Wales has a strong view. Those answered are numbered as listed in the “Summary of Questions”. The questions that have not been addressed have, for ease of reading by those responsible for collating the replies, been retained in this response but are highlighted in red.

4. Responses to the Green Paper

4.1. General Principles of care

SHA Cymru Wales supports the drive towards lessening the demands made upon the hospital service by: targeted action in a range of preventive programmes and health education; adopting the prudent care approach described in the paper; seeing the creation of health outcomes / health gain as a process of co-production; strengthening the primary care sector (including the creation of publicly owned primary care alternatives to traditional independent contractor models where needed). We see the three lines of defence referred to in the paper being aided by the engagement of citizens and patients.

SHA Cymru Wales also supports the creation of Local Health Boards in 2009 and the removal of the purchaser / provider split. We agree that the required governance and performance management regimes are still incomplete. In particular we feel that the “commissioning” and “providing” roles of Boards is insufficiently delineated, with the latter overshadowing the former. I answering questions 30 -34 proposals are made to remedy this. However we are not convinced that a legislative response to this weakness is appropriate. We agree too that the three lines of defence aimed at ensuring high quality services have been shown to need strengthening but here too we are not persuaded that legislation has a major part to play.

4.2. Responses to selected questions

Below is given our responses to selected parts of the paper using the questions posed as the starting point for our comments.

Chapter 1 Promoting health and Well being

Q. 1, 2 and 3 Should law be strengthened to aid local collaboration in planning / meeting need closer to home?

We see no strong case for using legislation unless the following are judged to need legal backing to ensure they occur:

a) SHA Cymru Wales regards co-terminousity of health and local government bodies as a major strength and one which is envied by other parts of the UK. SHA Cymru Wales will strongly oppose any move to misalign the boundaries of health and local government bodies. Establishing this principle in law would be beneficial.

b) Elected councillors in each current and proposed local authority should have powers to require Health Board and Trust Board members to attend scrutiny committee proceedings where a Council has concerns about plans of any health board / Trust that affect their residents.

c) The democratic accountability of any planning machinery covering several Local Authorities, to oversee the care system across local authority boundaries should be clear and both transparent and accessible to the public.

We believe that more use should be made of the recognised tools of collaboration and networking that are well documented in the literature. We would particularly draw attention to the value of pooled budgets and shared financial framework, a joint performance management framework and shared staff for planning and back office functions. More could be done to co- locate service delivery.

In areas of care that overlap at the operational level, much more attention should be paid to the creation of “boundary spanners” in the delivery of services.

Continuously engaging with citizens

Q.4 Should law be reformed to shape service changes?

We see no strong case for this.

Q.5 Should ongoing consultation on changes be placed on a statutory basis?

It is understood that current guidance already requires public bodies to co-operate with one another and that this includes plans for service changes. While we see no strong case for converting this to a statutory duty, there is a case (if this power does not currently exist) for relevant Ministers to have the power to direct local authorities and Health Boards to carry out specific actions if Ministers feel that inadequate collaboration exists.

Q.6 Should an expert panel replace Ministerial referral?

SHA Cymru Wales would expect that any proposals for service changes that are put before the public should have already been subject to expert assessment and would expect that such expert opinion would have been put fully in the public domain as part of that consultation. Normally it is expected that expert opinion is largely agreed on the merits of any proposals, or that if there is dissent, the nature of such dissent is clearly visible to the public. We see no case for referring difficult proposals to expert panels.

Many of the proposals that come to Ministers for decision are either ones where different professional groups disagree about the salience of the evidence or arise when proposals for change locally are made in the interests of the wider Welsh NHS. Both of these are rightly matters for the exercise of political, rather than “expert”, judgement.

Chapter 2. Enabling Quality

Quality and co-operation

Q.7 and 8. Are legislative measures the most effective tools to address quality issues? If so how can they build on the existing duty of quality to better fit out integrated system?

SHA Cymru Wales is not convinced that further legislation is useful in this area. However, it awaits the conclusion of the current process to legislate for safe staffing levels in the NHS; should an Act be introduced in this regard we would wish the effects of the Act to be formally assessed after three years and that this assessment should inform any further use of such powers to attempt quality assurance via legal means.

Q.10. Q,11 What would be the advantages / disadvantages of setting out in legislation the role of “responsible individual” for health bodies or a “fit and proper persons test.”

A legal basis for certain post holders could have merit if:

a) the list of such posts was precisely and deliberately crafted for specific reasons that are clearly and discretely within the remit of specific posts

b) the qualities needed for such posts could be both described, measured through selection processes, and be easily acquired

c) the “protected duties” of such posts could be clearly laid out, as much with the intention of giving such post holders legal protection in carrying out their duties as much as with any wish to expose such individuals to undue criticism or pressure.

However, we have concerns that specifying the details of this with the precision required will prove difficult in practice given the corporate nature of board governance and see little to be gained by this approach which is not already covered by existing selection processes and role specifications.

We also draw attention to increasing employment of nursing and medical assistants without any specific t raining or qualifications. This essentially unregulated ara of recruitment is in need of regulation and quality control.

Integrated planning

Q.12 Do we need to strengthen our existing legislation to further promote quality through the NHS planning framework?

We understand that currently there is a requirement for public bodies to co-operate and therefore no requirement for legislation in this regard is envisaged.

Chapter 3 Quality in Practice

Meeting common standards

Q. 13. and 14. Is there a case for changing the basis under which the healthcare standards for use in the NHS are set? Could a common standards framework for NHS and independent sector better deliver a focus on improving outcomes and experience for citizens?

There is an argument for being clearer about whether standards set by Welsh Government, or Health Boards as commissioners, or Boards and Trusts as providers -or indeed the extent to which external bodies (professional or regulatory) in effect determine standards.

There is also a case for being clearer about whether standards should apply to the level / type of inputs. (nurse staffing levels for example), specified care processes (for example expertly defined diagnostic pathways. or rehabilitation programmes), or whether expected outcomes should be relied upon. Each of these is problematical, not least because the pace of technical and other changes requires such standards to be updated frequently.

Whatever combination of standards is employed, it is suggested that standards should apply to the independent sector where:

a) it is providing a clinical service to an NHS patient via a contract with the NHS and thus the relevant NHS standard should apply

b) where a regulatory body finds it useful to deploy an NHS standard as part of its licencing /oversight function.

We must recognise that the quality of care is directly related to the continuity of care by staff who can then see , and reflect upon, the consequences of their actions. Time pressures upon staff, and high staff turnover obstruct these aims and the ability for staff to deploy the skills they have been taught and the values they hold.

Q.15. How can we use accreditation and peer review to promote better service quality?

It is commonly thought that good practice / innovation is not shared sufficiently quickly or systematically across the different care settings in NHS Wales. Accreditation and peer review processes offer a good vehicle for aiding this process by speeding the spread of knowledge of best practice and bulding this into accreditation processes.

4.2.6 Clinical Supervision

Q.16 and 17. How can we ensure health professional registrants have the opportunity to have clinical peer supervision? What arrangements should be put in place for self-employed health professionals?

These questions raise issues about the intended boundary between the roles of the employer and the appropriate profession in ensuring that professionally registered staff have accessed adequate oversight / advice. If it is felt that the professions should retain a high level of responsibility for maintaining professional standards, then it might flow that the role of Government and the service (as employers) is to help facilitate the level and type of support that the professions require.

In respect of self employed staff, SHA would see this as being a matter for the professions and the individual to arrange.

Chapter 4 Openness and Honesty

Q.18. Should we introduce a statutory duty of candour within the NHS?

If current expectations of professionals who are directly caring for patients are presently felt to be insufficient in meeting required standards, we can see a case for enshrining this duty in law.

However, the Green Paper makes it clear that the duty of candour has to extend beyond the caring professions to encompass managers and, probably, policy makers. Thus if any such duty were to be enshrined in law, it would be expected that such a duty would need to apply not only to most employees of Health Boards, but to civil servants dealing with aspects of public policy and to corporate bodies too.

Q.19. How can we use legislation to further improve transparency on performance in the Welsh NHS?

We believe more will be gained from opening up the service to greater

(and welcomed) public scrutiny, accompanied by formal support when problems are found. This opens up the service to both constructive advice as well as criticism and we believe the public offers more of the former than the latter.

Q.20. What legislative steps can be taken to improve the joint investigation of complaints across the NHS and Social Services in Wales?

The continued separation of health and social care through different delivery bodies (health and local government) and different payment regimes, are but two symptoms of barriers to seeing the care system as one integrated whole.

Legislative steps may aid two possible options for improving the handling of complaints about whole system matters. One would be either to require co-terminous health and local government partners to merge their departments that presently respond separately to complaints. Another is to retain separate functions but to require the department receiving any complaint which indicates both health and social care issues automatically to alert its partner service with a view to agreeing whether the health or social care agency implicated would investigate on behalf of both bodies and respond accordingly.

However, we recognise that the real differences between health and social care need to be noted. For example, health care is often delivered for the residents of one local authority by hospitals outside the area and thus major hospitals delivering regional services will often be dealing with a number of local authorities. It is likely that making arrangements for the discharge of such patients back to home or other community settings at a distance from the hospital will often be more complicated and have the potential source of justified complaints.

Such problems may be eased – but not removed – if the number of local authorities reduces broadly to match the number and populations of Health Boards and, in this eventuality, option one above (shared services) would have merit .

Chapter 5 Better Information

Q. 21 What are the issues preventing health care bodies from sharing patient information?

Incompatible IT systems. Legal issues re duty of care/confidentiality. Lack of clarity re: what organisations should be given data; who wothin each body is the data guardian; who owns which bits of data (some professionals see the data they gain as theirs and protected by their own professional codes).

Q.22. How can we consider breaking down any barriers?

Restrict transfer of and access to personally identifiable data to designated staff groups dealing with direct care.

Ensure compatible IT systems with well designed and protected access arrangements (if this is possible these days)

OR give patient / client / users control over their own integrated data file and make clear that they must alert staff to content

Q.23 What are you views on the collection and sharing of patient identifiable information for non direct patient care such as research? What are the issues to be considered?

We proceed from an assumption that in a public service which makes all scientific knowledge available for health care without charge, people share a moral duty to participate in expanding that knowledge for the benefit of future generations. Those who disagree should be allowed to opt out. We are however unsure that many circumstances exist where data that has been gathered must be personally identifiable in order to be shared for research and would need to be convinced of the need for this.

If such circumstances exist, personally identifiable data should only be with bona fide research bodies operating under stringent and legally based UK wide assurance / ethical procedures re a) the research topic and b) the safeguarding of data.

Chapter 6 Checks and Balances

Q.24 Are there gaps in the current legislative framework to enable HIW to operate effectively? If so, what?

Q.25 Are there arguments against providing HIW with full statutory independence? If not how should law be reformed? What are the implications for CSSIW

Q26. How can we improve joint working between GHIW and CSSIW short of creating a single inspectorate? Do these need legislation?

Q.27 What are the advantages or disadvantages for citizens of a single inspectorate covering the roles and responsibilities of HIW and CSSIW

Advantages – gives an inspectorate across the whole care system; one point of entry for citizens; gives critical mass

Q.28 Should CHCs be refocused on representing patient voice and advocacy? If so, how should we legislate?


Q.29 Is the current CHC model fit for purpose in a more integrated system? If not, how would you suggest it needs to be changed?

Chapter 7: Finance, functions and planning

Q.30 Should we change the law to give health boards borrowing powers?

No – Welsh Government should retain oversight of borrowing powers

Q.31 Is the legislative requirement to prepare NHS trust and health board summarised accounts still relevant? Q.32 Should legislative changes be made to provide greater flexibility regarding summarised accounts for NHS organisations in Wales, reflecting NHS structural and government financial reporting changes?

Whatever accounting system is used, the content and layout of financial reports should be common for Boards as commissioners, and also common for Trusts and Boards as providers so that comparative assessments can be soundly drawn.

Health Boards should be required by law to produce two forms of accounts – one that reports their work as commissioners of services and another which reports their work as providers.

The Board report as a commissioner report should be required to describe:

a) the basis on which the proportions of spending on different clinical services and (geographical) populations have been arrived at

b) the ethical judgements that have informed choices on spending

c) the reasons why the balance of clinical provider bodies ( the Board itself, other Welsh NHS providers, other UK NHS providers, UK private sector bodies, and any foreign services is as it is.

The Board report as a provider should indicate how spending levels have been arrived at in both clinical and non clinical areas, and also show the levels of investment in building repair, equipment replacement, and staff training and development.

Both reports should also summarise the level of Trust funds held and the use of Trust funds for the period in question.

Q.33 Should there be an equivalent statutory planning duty for NHS Trusts as we have for health Boards?

No, LHBs as commissioners , along with Welsh Government should remain the main engines of planning as far as clinical Trusts are concerned. However, Trusts should have a legal power to require LHBs to include in their plans and annual reports any concerns which Trusts feel should be placed in the public domain – for example where commissioners have not been able to respond to Trust requests for funding for extant or new services – accompanied by an explanation as to why such requests have not meet met.

Chapter 8 Leadership, Governance and Partnership

Q.35 What measures might be taken to strengthen leadership, governance and partnerships?

There is a mass of evidence and good practice that addresses this topic which is insufficiently employed within Wales to shape the style of leadership and governance used in the NHS, and the nature of the partnerships it seeks to create. We see little use for legislation here. Rather, means of ensuring the even application of good practice across Wales are required.

Q.36 Does the current size and configuration of health board membership best promote an effective focus on decisions, priorities and scrutiny?

No, need to create “commissioner” and “provider” mechanisms within Boards

with the Board itself being the arena within which the resulting tensions are resolved. Three types of Board members are thus needed, those skilled at overseeing the planning / political / engagement roles of the Board, those able to oversee and support the clinical performance of the provider function, and a number of generalist members skilled at leading Boards through complex and challenging tasks. The Chair should come from the third group. There may be merit in having a Vice Chair from a “provider” background and a Chair of the Audit committee from a ” commissioner ” background who would also oversee the scrutiny function.

Q.37 Could Health Boards have discretion about the role of some of its Executive Directors.

Yes, if the changes suggested in Q 36 were adopted. Fixed posts however should be those of Chief Executive, Director of Clinical Care. Director of Finance, Board Secretary, and Director of Commissioning.

Q.38 What are your views on the election of community representation.

Election to the Board is not supported. However, the scrutiny function should allow for a number of directly elected members from the commissioning catchment who would have full powers to see all papers relating to topics which both the Audit committee and the Scrutiny function chooses to review.

Q.39 Should there be a statutory provision for joint appointments between local authorities and the NHS?

There should be a legal framework that allows (but does not require) any two (or more) public bodies in Wales to create and find joint posts and this should extend to certain other agencies such as the police service and Higher Education bodies in Wales. This should also allow for public bodies to enter into joint appointments with not- for- profit agencies .

Q.43 Does the role of Board Secretary need greater statutory clarity? Q.44 What aspects of the role should additionally be set out in law?

Yes, make “protected” as in local government and list Board areas where his/her advice should be followed

Q.45 How cold potential conflicts of interest for the Board secretary be managed?

Q.46 Should we change the statutory basis of the advisory committees?

Q.47 How might we use legislation to ensure policy and service delivery is based on expert advice?

Q.48 Are the current (workforce) partnership arrangements fit for purpose or do they need amending in law to reflect increased devolution and the prudent healthcare approach?

Q.49 What legislative measures could be put in place to provide better clarity for hosted, joint and shared services.

Q50 What changes could be made to provide greater flexibility for NHS Wales Shared Services Partnership to equip it to take a public sector wide shared services role?


The forgoing responds to the areas set out in the Green Paper where legislation is being considered.

However there is an area that is not addressed which we would wish to place on the record. This relates to any legal opportunities or constraints that hinder a) the development and production of generic medications by the Welsh public sector and b) the eventual development of a programme of research and development aimed at creating new medicines.

We believe there is scope for savings (on 10% of the health budget) if the cost of out of patent medicines could be reduced by direct production. We also see a greater role for Welsh Universities, charities, the Welsh NHS and Welsh companies in collaborating to develop medicines for public benefit rather than mere profit.

We propose that a small expert group be assembled to explore any national and international legal / commercial issues that would need to be addressed were this policy to be pursued.