The NHS (Private Members) Bill, which once again is looking for a sponsor in Parliament, sets out proposed legislation to return the NHS to the organisational structures that were in place in the 1980s. That was before the purchaser/commission/provider split, before the increase in NHS clinical services being provided by private sector, before the quasi internal external market and before external governance and regulation
It is difficult to debate the value of the NHS Bill. It anticipates the closure of hundreds of existing organisations and the creation of hundreds of new ones, across the NHS and local authorities – with all that implies in terms of transfers of staff, assets, responsibilities and accountability. There is no supporting analysis of the impact; what it would cost, how many jobs would be changed or moved, how assets (and debts!) would be allocated, how long it would take and how a better care service would emerge as a result of changing structures. There would also be implications for the wider care system, especially social care.
However those supporting the Bill know it could never become an Act. No subject as complex and with such far reaching consequences could be dealt with by a Private Members Bill. And Private Members Bills are only (rarely) passed into law when they have wide ranging support – which the NHS Bill clearly lacks. Many MPs who are sympathetic to the aims simply will not back any proposal to have yet another major top down redisorganisation.
Supporters of the Bill say the point is not to change the law but to get debate on serious and important issues. But the arcane and legalistic framework of a Private Members Bill is not a sensible way to facilitate debate – there are far better ways that experienced parliamentarians can explain.
There is however some scope for a Private Members Bill to address the chaos that has been caused by the obvious reality that what is actually happening in the real world of the NHS is at complete odds to the legal framework set out in the disastrous Health & Social Care Act 2012. The NHS leadership and even the Tories in their manifesto have signalled the need for change – maybe even primary legislation to restore some credibility.
So it would be better for all if a more consensual, less complex Bill could be proposed, one which might even have some chance of making progress with the possibility that this could force the government to at least do something. Many of the aspirations of the NHS Bill to push back against privatisation could be met.
Any Bill would need to do two fundamental things. First remove any externally imposed requirements for NHS services to be arranged through a system of competitive tendering and second to allow the NHS to adopt organisational forms to better suit a system based on planning, collaboration and cooperation.
Obviously expert help is needed with drafting but this would appear to require
- repeal of Section 3 of the H&SC Act 2012 (and with it the S75 Regulations)
- restoration of the powers of the Secretary of State to direct any NHS body (including Foundation Trusts)
- and a power for the SoS to approve changes in organisations (mergers, partnerships, acquisitions) including bringing commissioning and providing together or bringing local authorities and NHS bodies together. (This could even allow for Health Boards.)
Concentrating powers again with a SoS legally and politically accountable to parliament for a universal and comprehensive NHS would be achieved but such powers might need to be constrained for example by making the powers to issue directions or introduce regulations being subject to proper public consultation and scrutiny.
The big debate to be had would hopefully then be about accountability and governance and what is “National” in a system where boundaries of all kinds are constantly shifting – what arrangements for service delivery would be variable according to local circumstances.
There could be scope for a much simpler and shorter Bill which deals with the immediate and serious issues widely accepted to be making highly challenging times even worse. Of course it would never pass but it would get a lot of support and so a lot of coverage of important questions which need answers. It would push at a door which is already starting to open and would also pile pressure on the government to do something.
Of course none of this deals with the most serious issue facing the care system which is the chronic lack of adequate funding.