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NHS Reconfigurations – the ‘Power-grab’ clause

By Rhion Jones

As the Health & Care Bill continues its passage through Parliament, many of us are looking anxiously at what is, at the time of writing, a proposed Ministerial power of intervention in service reconfigurations in England. (Clause 40).

At the House of Lords Second Reading debate, last Tuesday the Parliamentary Under-Secretary for Health. Lord Kamal made the case as follows

The public also expect Ministers to ensure that the system conducts reconfiguration processes effectively and in the interests of the NHS and, where necessary, to intervene. In such instances, the Bill provides a mechanism for the Secretary of State to intervene, subject to the advice of the independent reconfiguration panel.

It will cause problems, and in the words of Lord Lansley, whose own re-organisation a decade ago, and which has precipitated much of this legislation, will be “a potential political own goal and should be taken out.”

He is not the only one with doubts. The Labour Opposition Spokesperson, Baroness Merron signalled its disquiet, and the respected King’s Fund went further and advised Peers in the following terms

Extensive new powers for the Secretary of State to intervene in local service reconfigurations bring the risk of a decision-making log jam and dragging national politicians into local decisions over services. We believe these clauses should be removed from the Bill or, at the very least, substantial safeguards added over their use.

A seasoned ex-Civil servant, Lord Bichard made this comment: –

The extensive new powers given to the Secretary of State to intervene in local service reconfigurations, as drafted at the moment, fly in the face of the stated intent to give local places and communities greater power over local priorities. Surely there needs to be at least some stronger requirement in the Bill for local communities to be involved before such interventions are made.

So, what are the rights and wrongs of this debate?

  1. Those with long political experience know that there are few things more dangerous for a Government Minister than to become embroiled in local NHS reconfigurations. That is why, even though there is a power of referral to a Minister under current legislation, Whitehall has found it expedient to send the issue swiftly to an obscure (but impressive) technical advisory body known as the Independent Re-configuration Panel or IRP. It can take an informed view of its merits and make a recommendation which Ministers then feel safe, in most cases, to approve. When the White Paper was first published it was suggested that this body would no longer be needed. Ministerial Advisors have evidently recognised that it will be needed – even more so, if the new Bill proceeds unamended.
  2. The danger of political involvement is that change can be deeply unpopular and will cost the ruling party votes. This puts pressure on Ministers to decide according to political expediency rather than operational good management. Imagine if there was an outstanding NHS reconfiguration in Shropshire right now, with a difficult pending by-election. Imagine also, the temptation to tamper with decisions affecting marginal constituencies – a danger whichever Party is in Government.
  3. Against this, of course is the populist case for greater direct accountability of politicians. The argument is that Ministers hide behind technocratic mechanisms so blur the responsibility for changes that people dislike. But even ardent populists would probably disagree with centralising decisions in Whitehall when local conditions and local perceptions are more difficult to judge.

What has made matters worse in this Bill is the wide definition given to the term ‘Reconfiguration’. As things stand today, the Bill defines it as:

a change in the arrangements made by an NHS commissioning body for
the provision of NHS services where that change has an impact on—(a) the manner in which a service is delivered to individuals (at the point when the service is received by users), or (b) the range of health services available to individuals.

Read it carefully. For any change in the range of services or even the way in which they are delivered, NHS England or an Integrated Board (the new ICSs) will need to ‘notify’ the Secretary of State, who may then choose to give a Direction – the bureaucratic term for political intervention. Maybe there is wiggle room in the word ‘notify’. Might it be possible for an ICS to write to the Minister saying something like “During the next six months, the Board intends to implement a range of routine changes and improvements to dental, ophthalmic and podiatry services in Bloombridge. We will observe the necessary statutory provisions to involve public and patients and we will take account of current NHS Guidance.” ?

Or – more likely – will each service change need to be listed – with sufficient information provided to enable the Ministerial team to decide whether they want to become involved?  In that way, it becomes a consultation with the Minister before a consultation with everyone else. The problem with this is the sheer amount of work that will have to be undertaken by Health Managers before a criticism-proof case can be prepared and submitted. And how many levels of approval would the NHS feel it necessary to design to sort out the benign sheep from the politically-embarrassing goats?

In one sense, this could be a thoroughly good thing. At a stroke, one could remedy the problem of too many service changes being inadequately though-through and oblige the NHS to do far more homework and prepare its proposals better. Oh, and maybe not just the NHS. There is no mention of social care in the ‘power grab’ Schedule. And yet, the whole ethos of the ICSs is the supposed partnership of multiple delivery organisations. The new rules seem to require them to dot all the i’s and cross the t’s before the essential consultation phase – just so as to reduce the risk of Ministerial intervention. It is a crazy idea and totally unworkable.

The last word can be left to Sir Simon Stevens who, as Lord Stevens, made his maiden speech in the House of Lords during this debate. Having led the NHS in recent years, he knows what he is talking about and concluded his speech last week with the following hilarious anecdote:

Finally, in respect of the Secretary of State’s powers, care is needed to ensure that this does not end up inadvertently centralising a number of decisions on service configurations that are best made locally. I remember, early on in my NHS career, attending a public meeting at which the proposed closure of a small maternity unit in town was being discussed. It was a very well-attended public meeting; large numbers of people showed up. The director of public health tried to set out the case that there just were not enough births in this midwife-led unit. A voice came from the back of the hall: “How many do we need, then?” There was a bit of head-scratching and a puzzled look, then he spluttered an answer. The voice at the back of the hall came back: “In that case, give us 18 months”. I can tell your Lordships that, in 18 months, that town did produce the requisite number of babies and the maternity unit is still open. That is not a decision that should have been taken in Whitehall. Yet, lurking near the back of the Bill, in Schedule 6 on page 197, are provisions that essentially do that. Nye Bevan may have said that he would like the sound of the dropped bedpan to reverberate around Whitehall, but not even he suggested that each hospital should write to him personally for permission to move the cupboard in which the bedpans are stored.

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