Professor Kath Checkland of the University’s Health Organisation, Policy and Economics unit (HOPE) investigates what the legislative changes accompanying the Government’s new ‘Long-Term Plan’ for the NHS actually mean in practice.

• Proposals for legislative change have been included in the Government’s new ‘Long-Term Plan’ for the NHS in an attempt to counteract some of the unhelpful consequences of the Health and Social Care Act 2012.
• These proposals are designed to fix the ‘back room’ of the NHS, freeing up managerial time to focus on the things that matter to us all.
• Checkland’s research suggests that these proposals target the most problematic areas, and should reduce some of the inefficiencies associated with current ‘workarounds’ being used as a result of the Health and Social Care Act 2012.

In January, NHS England published its ‘Long Term Plan’ for the NHS. Tucked away alongside headline-generating pledges on cancer treatments and digital access to services were a number of ‘proposals’ for legislative change. That they were there at all represents a further shift in responsibilities away from the Department for Health and Social Care to an increasingly powerful policy-making Arm’s Length Body, NHS England. That they were needed is testament to the long lasting and unhelpful effects of the last major NHS legislation, the Health and Social Care Act 2012 (HSCA12). The trauma associated with the passing of that Act has been well-described by Nick Timmins and others, and our research has shown that, since 2012, NHS managers and commissioners have been engaged in a series of complicated ‘work-arounds’ to allow the NHS to function despite the Act rather than because of it. The commissioning of local GP practice services is a good example of this.

Historically, GP services were supported and managed by local organisations (PCTs) whose managers knew the complex landscape of services, their strengths and weaknesses and their needs. Whilst not perfect, the system worked. The HSCA12 abolished PCTs and transferred their role in commissioning services to newly-created Clinical Commissioning Groups, led by local GPs, on the grounds that GPs had the clinical knowledge required to optimise service provision. However, GPs clearly couldn’t commission themselves, and so responsibility for commissioning GP services was given to the new national commissioning body, NHS England. NHS England has no dedicated local teams, and after a very short time it became clear that a national body could not meaningfully support the development of local GP services. However, the HSCA12 establishes NHS England in statute as the commissioner of primary care, so a ‘work-around’ was required, in the form of what came to be known as ‘primary care co-commissioning’. Under this scheme, NHS England delegated their primary care commissioning powers to CCGs, which were required to set up complex arrangements to avoid conflicts of interest. Some small CCGs wished to establish collaborative arrangements with their neighbours – but soon discovered that the ‘workaround’ wouldn’t allow that. If a CCG with delegated responsibility for a function wanted to further delegate that responsibility to a combined committee of two neighbouring committees, ‘double delegation’ has occurred – which is illegal.

The role of competition between providers is another area of some confusion. The HSCA12 establishes the jurisdiction of European Competition Law over the NHS, with all procurements over a certain figure required to be put out to tender. This can be enormously time-consuming and costly for the NHS, with limited evidence that competitive tendering brings any benefits to patients. Our research found that commissioners are often unsure about the rules relating to competition, with CCGs interpreting them differently. Moreover, there is evidence of direct harm to the NHS, with a number of commercial providers challenging NHS Commissioners in court over their decisions, requiring expensive and costly reruns of procurements, and, on occasion, large payments made to unsuccessful providers.

Inefficiencies and complexities

There are many more examples of these kinds of inefficiencies and complexities, with managers in NHS England, CCGs and NHS Trusts working hard to make services work despite the provisions of legislation. The proposals in the NHS Long Term Plan aim to fix the worst of these:

• To remove the NHS from the scope of Public Contract Regulations, and to repeal Section 75 (relating to European Competition Law) of the HSCA12. This would remove the necessity for competitive tendering, whilst still allowing commissioners to use a competitive process if they wished.
• To remove the role of the Competition and Markets Authority (CMA) in overseeing the behaviour of NHS providers. The CMA has, in the past, prevented NHS providers from merging, even when such mergers were deemed to be strongly in the interests of the local population.
• To increase the flexibility of NHS payment systems by removing the role of NHS Improvement in overseeing the setting of national tariffs. As local service providers try to work together to provide more integrated care, it is increasingly becoming clear that existing payment mechanisms, by which individual providers have a strong financial incentive to increase their activity, can be counter-productive. Allowing commissioners more flexibility around the structure of payment systems would potentially better support the integration of services
• To allow both joint decision making between different commissioners and to allow the double delegation of commissioning functions. This will ensure that local CCGs can work together more effectively, and work with NHS England to ensure more joined up commissioning of complex services, removing the ‘double delegation’ problem
• To allow the creation of new NHS provider bodies. This would allow, for example, different community provider groups across a local area to combine together to provide integrated services, forming a new NHS body to do the work. Without this provision, new providers must set up as limited companies, bringing significant problems with VAT and an inability to enrol staff in the NHS pension scheme.

These are clearly limited and targeted proposals, aimed at ‘fixing’ the worst effects of the HSCA12 without undertaking a wholesale repeal of the Act. Our research suggests that these proposals do target the most problematic areas, and should reduce some of the inefficiencies associated with current ‘workarounds’. Of course, there may be some unintended consequences, and critics are likely to point out a potential reduction in patient choice if competition is reduced, but choice is generally less important to patients than having a good service which is convenient to access.

Fix the ‘back room’ of the NHS

When giving evidence in front of the House of Commons Health Select Committee on these proposals, I was asked if they would improve services for patients. My answer was that these proposals are designed to fix the ‘back room’ of the NHS, freeing up managerial time to focus on the things that matter to us all. Hopefully patients haven’t noticed that managers trying to avoid double delegation have spent hours managing complex committee arrangements, or that time-consuming procurement exercises have sapped commissioner energy and consumed their attention. Similarly they probably won’t notice if those inefficiencies disappear, but I think managers will, and hopefully, if these measures can find the necessary Parliamentary time, they will have more time to focus on the things which do matter to patients – the provision of safe and effective care in a facility which is convenient and easy to access.