This week, the Government published a White Paper detailing one of the most extensive shake-ups of the National Health Service since the Health and Social Care Act 2012 under the Coalition Government. Coming part-way through the ongoing coronavirus pandemic, the document promises to “learn the lessons of covid” and ensure a more “integrated” health and care system.

There are three major strands to the proposed reforms: removing barriers to integration, legislate to reduce bureaucracy and increase accountability. But what do each of these mean for consultors?

Removing barriers to integration

One of the major current problems, in the contention of the Government is the lack of joined up thinking in the NHS. It is difficult to achieve healthcare goals when there are many different parts, each pulling in slightly different directions. The new reforms would attempt to counter this problem by bringing the various different elements of the healthcare system together, primarily through Integrated Care Systems (ICSs), bodies which already exist in some areas, but which until now have not been on a statutory footing and have had somewhat nebulous responsibilities. In the new system, dual-body ICSs will be established by statute comprising a ICS NHS Body to be responsible for the day to day running of the ICS and an ICS Health and Care Partnership comprised of NHS, local authorities and other healthcare partners which will support integration and develop a plan to address health, public health and social care needs.

What is not clear is where engagement and public involvement stands within this new structure. Will the public get a chance to have their voices heard in the operation of these bodies? What the paper is quite strong on is what we might term “organisational” collaboration (“collaboration” being the term that the paper uses). The paper indicates that ICSs will work with local organisations and partners to achieve its goals- all very well and good, and many local organisations do fine work in supporting healthcare, but where is the opportunity for the general public to have their say? One of the key lessons of the coronavirus pandemic has surely been the dramatic impact of health inequality and the institutional problems with reaching certain communities. Without allowing those communities to share their views and play an active role, do the new ICSs run the risk of entrenching systemic inequalities, despite the efforts in the paper to portray this as being a solution to that very same problem?

We also have some curiosity as to what exactly is meant by collaboration. One part of the paper specifically refers to ‘co-production’, but as consultors will know, co-production can mean many things depending on who says it. To what extent will voluntary sector and local organisations have actual decision-making powers? Or is the Government merely using this as shorthand for involving them in the process. Whichever it is, with ‘involvement’ in the NHS Act 2006 and potentially now ‘collaboration’, the healthcare system is certainly talking in ‘not-quite consultation’ terms…

Legislating to reduce bureaucracy

Reduction of bureaucracy is a frequent government goal, no matter who occupies Number 10. This paper proposes, using the example of the pandemic, that a lot of the bureaucracy and management work can in fact be cut out of the healthcare system, or at least have its burden significantly reduced. The Government plans to reduce what it calls “transactional bureaucracy” by, amongst other things, largely removing the NHS from the purview of the Competition and Markets Authority (CMA), amending the tariff mechanisms and giving the Secretary of State for Health the power to create new NHS trusts to help with integration.

The White Paper makes some interesting language choices round the reduction of bureaucracy. One particular section refers to bureaucracy as having “made sensible decision-making and collaboration in the system harder”. The cynical mind might say that one man’s “sensible decision-making” is another man’s corner-cutting process leading to an unlawful decision. Many of the proposed changes refer to the commissioning of services, perhaps most notably by removing the commissioning of healthcare services from the scope of the Public Contracts Regulations 2015 and removing the provisions of the Health and Social Care Act that relate to procurement good practice.

Much of the subsequent replacement procurement provisions will be consulted upon by an upcoming NHS England public consultation, and will be designed to facilitate the integration proposals and encourage collaboration and collective-decision making. Given the tone of the paper, we can’t help but wonder if we might see a new instance of the ‘best value’ provision that has caused so much trouble for courts trying to interpret the Local Government Act 1999.

With the retention of patient choice being a key goal of the reforms, it will also be interesting to see if the public will play any role in determining how procurement decisions are made. Part of the bureaucracy reduction process seems to be that there will only need to be a competitive process for procurement where it would “add value”. The checks and balances will be all important here to ensure a system that does not just allow commissioners the ability to pick and choose suppliers with no real basis for their decisions. Could consultation play a role? We have seen cases in the past where procurement decisions have been challenged in court (notably R (Smith) v NE Derbyshire PCT [2006]), and the inability of individuals to comment might well mean an increase in these challenges.

Increasing accountability

This header has some of the most significant changes in the whole paper. Firstly NHS England and NHS Improvement will be merged into a single body under the former brand. Secondly, the Secretary of State will be given new powers to intervene in the NHS. There will also be a move towards responsibilities once held by NHS England and NHS Improvement being delegated a little further down the pyramid to the new ICSs.

In this section we also find what will likely be the most controversial elements of the reforms. The proposal for new intervention powers for the SoS in particular are likely to cause some consternation. Not only will the SoS be able to give directions in relation to (the somewhat indeterminate) “relevant functions”, but the current system of intervention in service reconfigurations will also markedly change.

At present, the SoS is only able to intervene after a referral from a local authority’s Health Overview and Scrutiny Committee (HOSC) and can commission the Independent Reconfiguration Panel to examine the proposals and make recommendations. Under the new system, not only will the SoS be given powers to intervene at any point in the reconfiguration process, but also the IRP will be abolished and replaced by yet to be determined “new arrangements”. The proposals also entail the removal of current local authority referral powers until the creation of a new system.

There are a lot of unknowns with these proposals, not only in how they would functionally work, but also whether there will be any constraints on this power. The paper does not touch upon this in any depth saying only that the SoS would be required to “seek appropriate advice” and “publish it [their decision] in a transparent manner”. If this is the limit of the restraint, then there will be serious concerns. The approach being previewed already smacks of a significant power-grab, and with few constraints on how this power is used the proposed process would be significantly open to abuse.

Conclusions

The White Paper perhaps leaves us with more questions than it answers. To take a selection, we might ask why, if the paper is designed to take account of the lessons of covid-19, is it being published now when we are but a few weeks out from the height of that pandemic? Similarly, as this is meant to introduce an integrated Health and Social Care system, why has it not waited until the Government has put forward its proposals for the reform of the Social Care system? On two levels we also might ask whether there has been sufficient public consultation and involvement. The brief consultation held over the Christmas period was rather inadequate, and its output has not been published. Secondly, there are also significant tensions between the importance of local healthcare and the instinct to take powers back to central government which are likely to cause problems further down the line when disagreements arise. We cannot just assume because they attended a stakeholder event or two, that local government is happy with the proposed arrangements.

We are of course likely to see further consultations on different elements of these proposals (three are already promised in the text). In light of the sweeping nature of the changes, the Government really can’t afford to get it wrong. We’ll keep looking at the paper and try to get in contact with some of the stakeholders involved in its production- certainly you should expect more from us on this as we try to unravel the plans and work out what other impacts there might be for consultors.