A new bill to reform the NHS in England: the wrong proposals at the wrong time

The government’s draft white paper for reform of the NHS in England, which was leaked on 5 February 2021, is a remarkable document—as much for what it does not say, as for what it proposes. 

Far from reversing the 2012 Health and Social Care Act, as has been widely reported, or responding to the National Audit Office’s finding in 2017 that “The Departments have not yet established a robust evidence base to show that integration leads to better outcomes for patients,” the proposals consolidate the market paradigm that the 2012 act strengthened and which the government has favoured during the covid-19 pandemic.

The core elements of the disastrous Lansley reforms remain in place: no duty on the government to provide key services throughout England to everybody; entitlement to services dependent on membership, now of clinical commissioning groups (CCGs), in the future of “Integrated Care System (ICS) NHS bodies,” though abolition of CCGs is implied, not expressed; commercial contracts and the purchaser-provider split still the basis for delivering services; foundation trusts still able to receive 49% of their income from outside the NHS; and public health functions and communicable disease control remain outside the NHS. 

Apart from the merging of NHS England and NHS Improvement/Monitor, there are two clear and genuine reversals of the 2012 Act: greater ministerial control over NHS England, and the abolition of competition rules, especially the “needless bureaucracy” of virtually compulsory tendering for clinical services.

The latter is welcome from the perspective of those of us who see no place for a market bureaucracy in the NHS. But far from needless, transparently competing for contracts is the check against corruption and cronyism within a market model. Contracts worth £10.5 billion were awarded directly without any competition during the pandemic to the end of July 2020; this will now become the norm.

To replace tendering, a “bespoke health services provider selection regime that will give commissioners greater flexibility in how they arrange services” is proposed. No details are provided and a consultation is promised “shortly.”

A statutory “ICS NHS body”—according to NHS England, whose proposals form the “foundation” of the new bill—will receive a “single pot budget” which will merge the budgets for general practice with acute and other services. It will “take on” the CCG and some NHS England commissioning functions. Its board will include representatives of NHS trusts, local authorities and general practice “and others determined locally.” General practices taken over by US corporations would be included.  No controls are proposed over whom the other board members may be. They could therefore include, for example, private hospital groups, nursing home chains and the 67 companies awarded a £10 billion contract last November for NHS inpatient, day case, pathology and imaging services, urgent elective care, cancer treatment, and diagnostic services.

The ICS NHS body will also be required to set up an “ICS Health and Care Partnership,” with wider uncontrolled membership, again including the private sector, but without specified functions. The powers of the partnership seem to depend entirely on what the ICS NHS body decides to grant it. 

Decisions on reconfiguration and funding will be provider driven and at scale, implementing “proposals developed by clinical and operational networks” rather than based on the needs of local communities. This market paradigm is very different from area-based authorities with responsibility for planning, and administering local services to meet local needs. Integrated Care Systems will be able “to delegate significantly to place level and to provider collaboratives,” including the use of “fully-fledged integrated care provider [ICP] contractual models.” 

Place levels are not defined. Provider collaboratives are not defined either, but are self-determined, with no required local connection and clearly open to multinational private companies and monopoly power. According to NHS England, they will operate within and beyond the ICS playing “an active and strong leadership role” and be “a principal engine of transformation”. The opportunity, for example, for private companies to be either or both members of the ICS NHS body, and commissioned to provide services, is obvious. The “strong recommendation” of the House of Commons Health and Social Care Committee in June 2019—that legislation should rule out non-statutory providers holding ICP contracts in order to “allay fears that [they] provide a vehicle for extending the scope of privatisation”—is not mentioned. 

The scene is set for facilitating the introduction and domination of membership providers, a design feature derived from health maintenance and accountable care organisations in the US. This is puzzling as at the same time the government is seeking to weaken the autonomy of foundation trusts through greater controls over capital spend and their ability to reconfigure services.

Transparency, scrutiny and local accountability will suffer. Although current local accountability requirements and mechanisms (such as they are) are based mainly around CCGs and local authorities, in reality these bodies will no longer be the decision-makers. Actual decision-making will be de-coupled from legal functions and the effectiveness of local accountability will be diminished in the process. The leaked document says nothing about this. 

The leaked document is also silent on how integration can be achieved coherently when health services are free at the point of delivery and social services are means-tested; when funding is for different populations (GP lists versus local authority); and on how health service funding would be allocated for unregistered CCG residents who might be eligible for local authority funded social services. 

While ignoring fundamental issues of local accountability and universal coverage, the proposals are very clear on the power of central government. The bill would give the government power to intervene earlier in reconfiguration processes, allowing it to smooth the implementation of provider-driven service change. It would also give ministers power to transfer functions between arms-length bodies and to abolish them afterwards without further primary legislation. This would be an astonishing power to by-pass Parliament. 

These proposals are incoherent, de-regulatory, off-target, and badly timed. They will do next to nothing to remedy the serious shortcomings highlighted by the pandemic: a depleted NHS, a privatised social care system, with over-centralised, fragmented and part-privatised communicable disease control and public health systems. Joined-up legislation is needed to revitalise local authorities and to rebuild public services. As David Lock QC said in 2019: “The big picture is that you have a market system. If you do not want a market system and you want to run a public service, you need a different form of legal structure.” We have provided that structure in the NHS Reinstatement Bill. The case for it is as strong as ever.

Peter Roderick, principal research associate, Newcastle University

Allyson M. Pollock, professor of public health, Newcastle University

The authors are co-authors of the NHS Reinstatement Bill. Their fuller response to NHS England’s legislative proposals is here. AMP was a member of independent SAGE.