Questions need to be answered on NHS legislative proposals | Niall Dickson

Niall Dickson

With the NHS long-term plan, there is a real opportunity to deliver a new vision for the health service supported by new models of care which depend on a much greater degree of collaboration, writes NHS Confederation chief executive Niall Dickson.

This article was first published in the HSJ.

Now, in response to the prime minister’s invitation, NHS England/Improvement have reviewed the existing legislative framework and produced a series of proposals designed to make it easier to achieve greater collaboration and system working.

It is a clear recognition that the 2012 Health and Care Act now stands as an impediment to reform. It is also a tacit acknowledgement that already the NHS has had to indulge in one workaround after another to take us forward to a more integrated future. The so-called “reorganisation to end all reorganisations” has caused difficulties, and in many aspects it is simply no longer fit for purpose.

And there are limits to what workarounds can deliver so if the legislation can be tweaked to remove obstacles that prevent or slow down progress we should welcome that.

There is clearly no appetite (or political support from this government) for wholesale legal reform: a view reinforced at the inaugural meeting of the NHS Assembly where there seemed to be a universal view that this is not the time for major structural reform.

There was though support for some limited, targeted changes. These could facilitate sensible procurement, enable more flexibility around joint commissioning and encourage collaborative working, all of which would help drive forward the population health agenda.

In short, a limited set of changes could give us the opportunity to develop a legislative framework which would empower front-line organisations and meet the vision set out in the long-term plan.

At the NHS Confederation, we have been engaging with frontline leaders on this. There is broad support for the direction of travel, but we need to be cautious – as they stand the proposals leave quite a few questions unanswered.

For example, it is not clear from the proposals just how the relationship between the centre and systems will develop. The role and function of a foundation trust of the future is not defined. Nor can you tell how far and how fast we should expect integrated care systems to develop, and whether they will eventually need some form of statutory underpinning.

At the heart of the issues raised by both trusts and clinical commissioning groups is the tension between the hard accountability they face to their governing bodies under the current arrangements, and their “new” responsibilities which require them to play a rather different and more involved role in their local systems.

Of course, front-line leaders already recognise they have these dual responsibilities but, given integrated care systems are not planned to be legal entities, these proposals leave unresolved a set of tensions in the system.

In particular, a key question will be how these changes impact on the authority and autonomy of unitary boards which are accountable for the activities of a trust. There is real concern among foundation trusts in particular about being held to account under the old system while being expected to sacrifice some of their autonomy.

Whatever new system of accountability is devised, it will need to reflect the requirement for pooled sovereignty and collective decision making.

One way forward that is suggested would be to create joint committees. In principle, that makes sense, but they must involve commissioners and all types of provider and enable strategic conversations about service needs. These should also embrace voluntary, community and independent sectors, all of whom provide critical services in the local health and care economy, as well as local authorities.

Joint committees could help to speed up the move towards greater integration. There is, however, a need to be clearer about the specific roles and responsibilities that commissioners and providers would have in these arrangements. The joint committee will need to draw on the expertise of providers in the design of patient pathways and be explicit in what decisions cannot be made jointly and will be reserved for commissioners only.

In our view, a key test of these proposals will be whether they genuinely hand local systems greater autonomy and control over what happens in their areas. While it may not be the intention behind these proposals, there is a risk that taken together they could give the centre more power to intervene and control the activities of local NHS organisations.

And again, while the amalgamation of NHS England and NHS Improvement is welcome, we need to be careful not to create an all-powerful institution which is too big to challenge and too big to function effectively. The challenge here will be to make sure it can balance its responsibilities for regulation and oversight, including where standards are not being met, with its need to support local organisations and systems which need autonomy to operate effectively.

In addition, the emerging NHS and care system will need strong local accountability and effective commissioners and providers working together to create integrated services. Very little is said in the document about the role of health and wellbeing boards or scrutiny committees and how this might develop.

And the accountability and reach of foundation trusts into the communities they serve also needs to be recognised – it is one of the routes for patients and the public to have formal involvement in the running of local NHS services. We should not throw this away and no-one, at least if you believe all the rhetoric, wishes to see a return to a top-down system that imposes one-size-fits-all solutions and second guesses local decision making without fully understanding the local context and issues.

The proposals will, therefore, need to be scrutinised at every stage of their development, which means a consultation process which has the full engagement of local providers and commissioners.

As well as considering these individual issues, we must make sure that drafting and passing legislation does not itself become an impediment to collaboration. Given the political context and the lack of parliamentary time, it may be hard to secure these changes. Even with the fairest wind they will not come into force before 2022/23. In the meantime, this must not become a reason to delay efforts to transform services.

And let us be realistic about how much change can be brought about by legislative changes alone. We have consistently heard that what is needed to enable greater collaboration across local systems is down to behaviours, relationships, leadership and culture – none of which can be legislated for.

This will require national bodies and government to support NHS leaders and staff to make changes to local relationships, to bring about integration in the interest of their communities, and to create the right legislative and regulatory framework for local leaders and their organisations to succeed.
This article was first published in the HSJ. Read our 10 key asks document here.

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