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What will be the effect of the NHS’ calls for new health legislation?

Date of publication: 1st Mar 2019

Categories: Independent Healthcare Voices

IHPN Chief Executive, David Hare, looks at what the NHS’ call for new health legislation will mean for patients and taxpayers

Yesterday NHS England and NHS Improvement provided further details of their proposals for NHS legislative change. Seasoned health policy observers will not have been surprised by the general direction of travel since moves towards greater ‘integration’ of services have been underway for some time, but the devil is usually in the detail, and on this occasion that certainly seems to be the case.

Firstly there is the problem of definition.

Trying to take ‘competition’ out of the NHS is a bit like peeling an onion – you remove one layer and another presents itself. Competition will be a feature of any system, health included, and the question is how it is managed rather than whether it ‘exists’ at all.

This is where yesterday’s legislative proposals fall down – they land on a position far too close to being ‘anti-competitive’, which in practice means that incumbent providers will be preferred in almost all circumstances no matter the quality of care being provided.

The document does make clear that new capacity or innovative service models can still be introduced into local NHS systems but the road to getting there would be intimidatingly drawn-out with all of the incentives pointed towards retaining incumbent provision. This is ‘NHS preferred provider’ in all but name and raises serious concerns that poor quality provision will be allowed to persist, disadvantaging patients in receipt of that care.

There is also a big question over what problem the rule changes are designed to solve given the fact that only around 5 per cent of NHS contracts are actually let by competitive tender. This fact certainly suggests that commissioners do not currently feel compelled to tender a service.

Secondly there is the problem of confusion.

The NHS cannot simply be lifted out of all its legal obligations such as the Competition and Enterprise Acts and it seems highly unlikely whatever happens with Brexit that the government will opt out of public contract regulations or an equivalent. Carving out a separate legal environment for the NHS looks untenable and by removing NHS Improvement’s enforcement powers it leaves the NHS simply exposed to the courts. It was for this reason that successive governments very sensibly created and maintained a bespoke statutory enforcement function for the NHS (currently NHSI/Monitor) which was sensitive to the specifics of the health service. Removing that could have some very perverse consequences.

Thirdly there is the problem of what is missing.

The proposed ‘best value’ test should be the starting point for change and not left until later. If it is, then the NHS is open to the charge that this is another top-down reordering of the deckchairs rather than a set of changes that will improve services to NHS patients, with the usual distraction and disruption that accompanies the passage of primary health legislation, which may start as ‘targeted’ but could end up anything but targeted.

It is also simply far too blasé to say that “we are confident that any conflicts of interest could be managed” since the proposals for joint commissioner/provider committees and much greater freedoms for commissioners to engage widely with existing providers to design the model of care they want before awarding a contract raise material accountability and transparency concerns.

There is a long way to go before the NHS has a new legal regime and before it does then the whole system needs to bear in mind that nothing has changed. But the signals sent out yesterday by the NHS over its preferred end-state destination merit serious debate and scrutiny to ensure that the changes create real benefit for patients and taxpayers.