Consultation response

Health and care bill: Public Bill Committee written evidence

Committee urged to consider three key asks on SoS powers on service reconfigurations, integrated care board composition and ICS regulation.

13 September 2021

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Our members are united upon two key principles relating to the health and care bill:

1. There is a clear consensus across the NHS in support of moves towards integration 

The NHS Confederation and our members broadly welcome and support the intention of  the health and care bill to help integrate services and put integrated care systems (ICSs) on a statutory footing. The bill is largely based on recommendations from NHS England and Improvement (NHSE), as well as local health and care leaders, to remove legislative barriers to the local integration of care services, which is already underway. This in turn  will enable better and more efficient care for patients. NHS leaders are broadly in  agreement that the Bill does not represent any move towards “privatisation” of the NHS. 

2. NHS leaders want as much flexibility as possible

The proposed legislation should be an enabler of integration and local flexibility, rather than an overly prescriptive set of centralised rules. We therefore support the permissive approach taken in the bill and call on parliamentarians to resist amendments which would create excessive prescription in law. 

Building on these two principles, we urge the Committee to consider the following three asks:

Checks and balances are needed on increased SoS powers on service reconfigurations

The health and care bill introduces significant and largely unchecked new powers for the Secretary of State (SoS) to intervene at any stage of a local service reconfiguration decision (such as a change in location or the type of treatment provided by an NHS organisation), with no minimum set of information requirements on which to base such a decision.

We continue to argue for clauses introducing these powers to be removed. If they are to remain, however, then there must be greater clarity over when and how they are used. This should help to avoid the confusion that surrounded the recent example of Lancashire Teaching Hospitals Foundation Trust, where the former SoS put on hold a planned consultation on the potential downgrading of the A&E department at Chorley Hospital, with very little information being made public to justify the intervention.

We therefore propose amendments to ensure that the integrated care board’s (ICB’s) clinical case for change is considered by the SoS when intervening in local service configurations and that such evidence is made publicly available. We also propose 
measures to ensure that the SoS consults with relevant Health Overview and Scrutiny Committees and sets out how interventions in decisions are in the public interest. 

These proposed amendments are also supported by the Local Government Association, the British Medical Association, National Voices and the Centre for Governance and Scrutiny. 

Integrated care board (ICB) composition should remain permissive

There will likely be many proposed amendments from across the health and care sector  to legally mandate further ICB roles. The NHS Confederation urges the Public Bill Committee to resist supporting such amendments as they may unduly restrict local leaders’ ability to have flexibility in future. Our members are clear that the success of ICSs will rely on managing local circumstances and relationships and this requires the ability to exercise judgement. Rather than mandating ICB positions through legislation, we believe that such positions can be ensured through supporting guidance where there 
is a good reason for doing so. 

We also urge the Committee to resist amendments that would mandate that only public sector and “social purpose” organisations can sit on ICBs. 

Regulation of ICSs must be lean, light and agile

The role of the Care Quality Commission (CQC) over ICSs is still to be confirmed. All regulatory frameworks must recognise the significant variation in ICSs in terms of their size, partnerships and population health challenges. Simplistic measures such as ‘Ofsted-style ratings’ will not acknowledge the complexities that create each unique integrated system. Rather than a heavy-handed external regulatory or special measures approach, local partners will need support to develop their own long-term solutions to the challenges they face together.