Exposing the continuing flaws in the NHS reorganisation

Press briefing from the Office of John Healey MP, Shadow Health Secretary

The Health and Social Care Bill returns in part to the Commons Public Bill Committee today, 28 June 2011. But the Government is only recommitting 64 of the bill’s 299 clauses to the Committee, stopping the elected House of Commons from doing its proper job of scrutinising the legislation.

From the outset, the Government has misjudged and mishandled its plans for the biggest reorganisation in the history of the NHS, and its legislation which is more than three times longer than the 1946 Act which set up the NHS.

The last year has been a wasted year for the NHS, characterised by Government chaos, confusion and incompetence. The Prime Minister’s reorganisation of his NHS reorganisation following the “pause” was a political fix, not a proper plan for improving patient care or for a better more efficient NHS. The confusion and chaos of the last year will continue.

The Government say they have listened but their announcements and amendments after the “pause” show they have learned little:

1 The Government’s amendments show they are making the same mistake in trying to railroad the legislation through Parliament.

2 The Government’s amendments are creating more bureaucracy and will mean the NHS is deeply mired in the red tape of more national quangos, more complex decision-making and more wasted cost. And the Government are still forcing through the biggest NHS reorganisation in history when finances are the tightest for 50 years, so the confusion and chaos of the last year is set to continue.

3 The Government’s amendments leave in place in the legislation the essential elements of the Tories’ long term plans to see the NHS broken up as a national service and set up as a full-scale market.

Making the same mistakes

Parliamentary mishandling and misjudgements on the Bill

The Government’s incompetence has created chaos, confusion and uncertainty in the NHS over the last year. The steps of good public policy and good government – consult, legislate, implement – have been reversed with the NHS reorganisation. They rushed the legislation and refused to listen until the Prime Minister was forced by very wide criticism to call the unprecedented “pause”. But the Government is now repeating their mistakes by railroading the Bill through Parliament and refusing to take up important recommendations from their own Future Forum:

  • Only 64 of the 299 clauses in the health and social care bill have been returned to Committee for scrutiny, and the Commons can’t consider changes to one clause without looking at the consequences for other parts of the bill and other parts of the NHS.
  • The last bill to be returned only in part to Committee was in 1951; the precedents all point to recommitting the entire bill as Labour in government last did in 2003 with the Planning and Compulsory Purchase Bill when the Committee and outside organisations also had the full summer recess to examine the Government’s amendments before the Committee reconvened.
  • 180 Government amendments were tabled with only two working days before organisations are called to give evidence on the changes to the Committee today.
  • Only 10 Committee sessions have been allowed by the Government for debate, giving around 7 minutes for scrutiny of each amendment so far tabled.
  • Not all amendments promised by the Government have been prepared and tabled for Committee, leaving these changes to later Commons stages or the Lords.
  • The Government doesn’t know and can’t say how much the reorganisation will now cost or what savings it can now claim will result because the Bill’s impact assessment is redundant in light of the Government’s changes and a new one will not be published before the Bill leaves the House of Commons.

Ignoring important recommendations of the Future Forum

The Government was forced to pause its Bill because of the unprecedented chorus of concern and criticism about its plans. But the amendments to the Bill are not based on listening to those concerns. They are a political fix, not a proper plan for patients.

The report from the Prime Minister’s Future Forum of 45 experts was warmly welcomed and accepted by the Government. David Cameron welcomed the Future Forum’s report, saying “We have listened, we have learned, and we are improving our plans for the NHS. We come here today with a substantive package of changes, and for that I want to thank Steve Field, the Future Forum and everyone who took part.” Andrew Lansley announced to the House of Commons, “We accept the NHS Future Forum’s core recommendations”.

The Future Forum made recommendations in a number of areas which Labour’s analysis of the Government’s amendments to the bill show they have ignored. These include:

– The Future Forum raised concerns about promoting competition as an end in itself, and recommended that Monitor be stripped of its competition duties and no longer be an economic regulator; the Government has ignored this, and Monitor remains an economic regulator with wide pro-competition powers.

– The Future Forum recommended that all providers of NHS-funded services should hold their Board meetings in public; the Government have largely ignored this in their Government’s amendments.

– The Future Forum recommended pathfinders for joint commissioning of integrated services on the same model as Consortia and Health and Wellbeing Board pathfinders; the Government have ignored this in their amendments.

– The Future Forum recommended Strategic Health Authorities’ workforce functions should be safeguarded and transferred to a new organisation; the Government have ignored this in their amendments.

– The Government’s response to the Future Forum accepted clinical senates to oversee strategic issues but this has been left out of the Government’s amendments.

– The Government’s response to the Future Forum accepted that Public Health England be made independent of Government; but this has been left out of their amendments.

– The Government’s response to the Future Forum accepted that the system for designation – allowing services to close without consultation – would be changed, but this has been left out of the Government’s amendments.

– The Government’s response to the Future Forum accepted that existing NHS cooperation and competition rules would be maintained, but this has been left out of the Government’s amendments.

– The Government’s response to the Future Forum accepted that Commissioning Consortia would change to Clinical Commissioning Groups, but this has been left out of the Government’s amendments.

More bureaucracy, cost and waste

The Government’s plan for the NHS will mean more bureaucracy, more complexity, more cost, more waste and more power for new national quangos.

  • The Bill will create 5 new national quangos to manage the NHS:
    • Monitor [in its new form]
    • The NHS Commissioning Board
    • Healthwatch England
    • Public Health England
    • Health Education England
  • The Bill abolishes the PCT and instead gives the job that they, one single body, are currently doing to 5 different ones:
    • Clinical Commissioning Groups (CCGs, previously called consortia) which will be doing the main commissioning job
    • PCT clusters, which will be part of the NHS Commissioning Board and will do commissioning of primary care and dentistry
    • Clinical senates, which will take an overview and provide advice on how services fit together
    • Local authorities, which will now have responsibility for public health
    • Health and Wellbeing Boards, which will now bring together health and local government to develop wellbeing strategies and plans

This has been a wasted year for the NHS, and the chaos and confusion will continue as the Government forces through the biggest reorganisation in the history of the health service.

  • – £850million will be spent on redundancies, according to an answer to a Parliamentary Question.
  • – According to the NHS Operating Framework 2011-12, published in December, 2% of PCTs budgets, almost £2bn, is being held back from patient care to cover the costs and risks of the reorganisation.
  • – Hospitals are having to make deeper cost backs of an additional 2.5% because of the reorganisation in each of the next four years, or £1.1bn each year, on top of the 4% they are already having to find. The Foundation Trust regulator told hospitals to find the extra savings in a letter sent in April this year.

The greater bureaucracy, longer time scales and more complex accountabilities all mean the costs of reorganisation will be higher and the risks to patients services greater. It will be harder still for the NHS to make the reforms and sound efficiencies necessary to meet the big health care challenges for the future. This remains a reckless reorganisation forced on the NHS at the worst possible time during a period of financial pressure.

Tory long-term NHS plans still in place

Despite the chorus of criticism, the unprecedented pause and the Future Forum’s demolition job of the Government’s NHS plans the amendments the Government have tabled fail to safeguard the NHS.

The Government amendments still leave in place the essential elements of the Tories’ long-term plan to set up the NHS as a full-scale market and break up the NHS as a national public service, so that patients will increasingly see the services on which they depend subject to the lottery of where they live.

Setting up the NHS as a full-scale market

Economic regulation and the new regulator’s pro-competition duties remain in the bill, competition enforcement powers are unamended and the NHS’s protection from the full force of UK and EU competition law will be removed by the changes in the bill.

The Future Forum stated that “there was never any intention to introduce a market in the style of the utilities sector into healthcare” and that Monitor should be a “sector regulator for health not an economic regulator.” However, Part 3 of the Bill – 93 clauses – is called “Economic regulation.” Only 9 of these clauses are being amended by the Government. This Part of the Bill replicates the regulation of the privatised utilities, according to the Government’s own Explanatory Notes. The long term Tory plans therefore remain firmly intact.

The Government’s amendments propose to change Monitor’s specified duties but not its powers. Monitor will still have the power to enforce Competition Law and to fine hospitals by ten percent of their income for collaboration that is deemed to be anti-competitive.

Whilst the initial “duties of Monitor” will be altered by the Government’s amendments, these changes are partial. The Future Forum recommended Monitor should “promote choice, collaboration and integration” but the amendments do not do this. There is to be no duty to promote collaboration. Instead, the Government’s amendments give Monitor a new duty to “prevent anti-competitive behaviour.” Unlike integration, this is defined by the Bill, as “behaviour which would… prevent, restrict or distort competition” – which is the exact same wording as the Competition Act 1998 and Amsterdam Treaty. Therefore competition remains a much stronger force in Monitor’s new duties than the Future Forum recommended.

The Bill still:

  • Abolishes public service NHS hospitals, making Foundation Trusts commercial bodies
  • Axes any cap on NHS hospitals treating private patients
  • Allows hospitals to close services without public consultation
  • Makes hospitals going bust subject to commercial insolvency law, with no system of support from the wider NHS for those in trouble.

Breaking up the national public service

The Government’s response to the Future Forum promised that the role of the Secretary of State in providing the health service, established since 1946, would be restored. However the key wording of section 1(2) of the NHS Act 2006 has still been changed. Currently it reads that the Secretary of State must “provide or secure the provision of services”. The Government amendment now says that “the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act”. This remains a weakening of the Secretary of State responsibility, requiring him to act through other agencies, rather than being directly responsible for the health service.

Since 1946, the Secretary of State has also been responsible for defining what constitutes the health service. Clause 9 of the Bill which leaves this to local commissioning consortia is not being amended. Section 3 of the 2006 Act currently says that the Secretary of State must provide a number of services throughout England “to such extent as he considers necessary to meet all reasonable requirements”. The Bill transfers this responsibility to consortia. This means that while the Secretary of State is responsible for the promotion of the health service, and ensuring that that service is free of charge, consortia will be able to determine what services actually constitute the health service.

The Bill still leaves open up the possibility of consortia being able to charge “top ups” for certain services they deem to be outside the definition of the health service, despite the claim by the Government to have ruled this out.

Labour’s continuing concerns about the changes to the Secretary of State’s duties have been confirmed in independent legal analysis from Peter Roderick, the public interest lawyer, who has made a formal submission of evidence to the Bill Committee. NICE recommendations remain weaker in the new system, with no guarantees in the amendments to safeguard rights to NICE-approved drugs and treatments. The effect of these clauses will be to break up the NHS as a national public service, with the services on which patients depend subject to the lottery of where they live.