Five priority areas for scrutiny in the forthcoming bill

Chris Hopson profile picture

20 April 2021

Chris Hopson
Chief Executive
NHS Providers


The forthcoming Health and Social Care Bill will see another legislative overhaul to place system working on a statutory footing, alter the relationship between ministers and the NHS – its key national bodies, and address broader issues such as streamlining professional regulation.

The passage of the 2012 Health and Social Care Act highlighted the political perils of health service reform. Whatever your views on competition as a driver of change, the 2012 Act's passage through parliament was difficult and as a result, the final legislation was less coherent than the original vision. This time there is much broader consensus that collaboration, and not competition, in local systems will be a positive driver of change for patients, staff and the service alike. But the devil will be in the detail and the specific drafting will be key. The Commons health and social care committee is in a unique position to help ensure the forthcoming bill avoids potential pitfalls. We have asked the committee to consider five key concerns as it finalises its report on the bill.

The government has not yet set out how any new powers of direction for ministers over the NHS would operate. But these should be carefully circumscribed.

Chris Hopson    Chief Executive

The first is to preserve the NHS' clinical and operational independence. The government has not yet set out how any new powers of direction for ministers over the NHS would operate. But these should be carefully circumscribed; exercised with transparency, including publishing the views of the body being directed; and pass a clear public interest test which is also made transparent. Areas of particular concern where the NHS must remain independent include decisions over procurement, treatment or drug funding and the hiring and firing of frontline NHS leaders.

And while we can see the logic of ministers having powers to move responsibilities between arm's length bodies via secondary legislation, there are some key areas where that is not appropriate. For example, any decision to abolish, or fundamentally weaken, the newly formed NHS England or Care Quality Commission should require primary legislation.

The same approach should apply to the proposed ministerial powers over local reconfigurations. There should be an appropriate threshold governing the level of reconfiguration where ministers get involved. Any ministerial intervention must be fully transparent with provision for affected parties to make appropriate representations. Given the overwhelming importance of patient safety in these considerations, there should also be an explicit test that use of the power must maintain or improve safety before it can be exercised.

A third area of focus is the need for integrated care systems (ICSs) to meet local needs, rather than be pushed towards a "one-size fits all" model.

Chris Hopson    Chief Executive

A third area of focus is the need for integrated care systems (ICSs) to meet local needs, rather than be pushed towards a "one-size fits all" model. Trust leaders have different views on the value of placing ICSs on a statutory footing. But there must be clarity on how the accountabilities of all parts of a local health and care system – including trusts and foundation trusts – align without duplication, overlap or additional bureaucracy. This is a complex task and, as yet, it isn't fully clear how all the pieces of the jigsaw fit together. Particularly once you add in the new health and care partnership which will sit alongside the ICS NHS Board, NHS England regions, provider collaboratives, place based working, the continued legal existence of CCGs, existing health and wellbeing boards and other partnerships like primary care networks. This feels like it could be a crowded pitch!

Significantly, this legislation presents an opportunity to address a longstanding problem in the NHS – the lack of a transparent, costed and funded long term workforce plan setting out the desired future shape and size of the NHS workforce. There is growing consensus among leading stakeholders and commentators that we need to go further than the current white paper and create an additional duty to ensure the development of regular, public, annually updated, long-term workforce projections. These projections should set out the size and shape of the workforce needed to deliver safe, effective, high quality care for patients and service users, and the estimated cost of delivering this workforce. Ministers should regularly update Parliament on the government's strategy to deliver those long-term projections, including its approach to providing the required funding.

The white paper is clear that trusts and foundation trusts retain their accountability for the delivery of safe care.

Chris Hopson    Chief Executive

Finally, there are still key issues to be resolved to ensure financial flows work effectively given the moves from tariff to blended payments and block contracts and from a series of individual CCG/trust contractual discussions to the allocation of a single budget to an ICS. The white paper is clear that trusts and foundation trusts retain their accountability for the delivery of safe care. Capital spending – on buildings and equipment – is central to this task. We recognise that if ICSs are to prioritise capital within a financially constrained environment there is a logic for NHS England, in extremis, to have a reserve, backstop power to set individual foundation trusts capital limits. But it is vital that use of this is carefully controlled. The safeguards we agreed for the NHS' 2019 proposals are not explicitly included in the white paper and need to be included in the bill itself.

The white paper is wide ranging. But if we get these key priority areas right there is a real prospect of the reforms delivering the desired improvements without losing coherence. Get them wrong, and we run the risk of pushing local services further apart, rather than pulling them closer together.

This blog was first published by the HSJ.

About the author

Chris Hopson profile picture

Chris Hopson
Chief Executive
@ChrisCEOHopson

Chris Hopson is the chief executive of NHS Providers. He joined in September 2012 after a career in politics, commercial television and the civil service. Read more

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