The NHS White Paper contains much that was entirely predictable. Sorting out the legal mess created by the Coalition Government’s reorganisation has been a requirement for years as Managers devised ever more elaborate workarounds to repair the damage.

What was a surprise was that, in addition to enabling Ministers to intervene in NHS reconfigurations earlier and more flexibly, the long-standing ‘power of referral’ would be abolished.

At present, top-tier Councils have a Health Overview and Scrutiny Committee (HOSC) which is an important part of the system of checks and balances that constrains the NHS from making significant changes to services without taking account of local views.  One of the key weapons in their armoury is the power to refer to the Secretary of State any proposed service change upon which there has been no consultation or inadequate consultation with the Committee. Frequently, this is exercised if Councillors feel that the public itself has not been properly consulted. It can also refer if it feels that the proposals are not in the best interests of the local community.

Upon receipt, the Minister then refers the case to the Independent Reconfiguration Panel which will investigate the circumstances and advise the Minister if he or she should intervene. Over 15 years or more, this body has acquired an enviable reputation for understanding the relationship between clinical judgements and the need for public support. Its Reports have, by and large, been models of sensible arbitration between these competing forces. It has been a massive bulwark against arbitrary or negligent reduction in services for many communities.

There is a case for Ministerial intervention to be more flexible. But it need not dismantle that part of the service change process that clearly works. Here is what the White Paper says (at pages 47/48) …

5.84       To support this intervention power, we will introduce a new process for reconfiguration that will enable the Secretary of State to intervene earlier and enable speedier local decision-making. We will issue statutory guidance on how this process will work as well as removing the current local authority referral process to avoid creating any conflicts of interest. We will publish further details of proposed arrangements in due course. This would mean that we expect the Independent Reconfiguration Panel to be replaced by new arrangements. Since its establishment in 2003, the Independent Reconfiguration Panel has provided advice to the Secretary of State on over 80 cases and we will learn from the work of the IRP as we develop processes that build on lessons and principles for achieving successful service change.

5.85       We do not anticipate this power being used with great frequency but where there are issues that Ministers have concluded need to be pressed to a resolution, this will provide a means of doing so.

Here are four reasons why this is a bad idea:

1. The argument that you cannot have a power of referral once the local authority becomes part of the new ICS decision-making structure because it is a ‘conflict of interest’ implies a misunderstanding of the scrutiny process. The whole point of scrutiny is to enable Councillors to challenge decisions – even if it is of their own Council. And we are yet to see what role will be played by local authorities in ICSs. Whatever it is, it should not compromise the right of Councillors to question decisions that can have a significant effect on services delivered to their constituents.
2. The power of referral is a process that has worked successfully. It provides a back-stop sanction if HOSCs feel that NHS Managers are unresponsive to their arguments. It is a useful political safety-valve at a time when communities feel intimidated and threatened by top-down decisions imposed from on-high. Very few referrals have been frivolous and there are many proven occasions when the IRP has found in favour of local authorities and persuaded Health Trusts, CCGs and others to modify or abandon flawed proposals.
3. Have Ministers realised what a poisoned chalice it may be to have to intervene on matters of NHS service reconfigurations? What will be the entry point into the new process? No Minister wants his judgement to be over-influenced by the lobbying of local MPs – no matter which party they represent. Decisions favourable to your own side will always be criticised for partisanship, no matter how unbiased he or she may have been. If they abolish the IRP, they will, sooner or later have to re-invent it – or something similar.
4. We should always be wary when Governments announce withdrawing democratic safeguards in favour of ‘new arrangements’ that have not been published or subject to any scrutiny or consultation. Abolishing the IRP is clearly a last-minute decision because, as recent as 21^st December, the Minister was seeking to appoint six new members of the Panel. For that reason, there was no mention of this in the November consultation on ICSs. This idea needs full discussion with local government, individually and collectively. And a proper public consultation.

The Institute will now talk to local Councils, public engagement staff in the NHS and other stakeholders to assess the extent to which the Government’s surprise decision has any meaningful support. So many of the White Paper proposals are probably sensible. It just seems such a shame that this part of the package appears ill-considered.

We welcome comments and observations on this important topic