It used to be simple.  If a trust failed then its assets would be transferred to another public body or sold off and the staff would be transferred or made redundant.  The Secretary of State had the overall duty to ensure a universal comprehensive health service and powers to match.

How services were configured was a matter for trusts and commissioners and if there was a proposal to change configuration then there was a defined and comprehensive process to go through with lots of public involvement and scrutiny.

Most “NHS reconfigurations” were badly presented, poorly communicated and based on flawed assumptions.  Desperate attempts to save money were wrapped up as necessary clinical changes – nobody was fooled.

The Lansley nightmare made the NHS into a regulated market with numerous autonomous commissioners and numerous competing autonomous providers.  Some providers would fail which then allows room for new more innovative entrants. So we have to set out what must happen when a trust becomes unsustainable.  An Administrator is brought in to sort it out by making recommendations for action which get endorsed by either the Secretary of Sate or Monitor, and implemented.

The role of the Administrator was originally “taking action in relation to” a specific trust.  After defeat in the Courts the Government is changing the legislation to add – “including in relation to another Trust which is necessary and consequential”.  It will take several Court cases to sort out what those last 3 words mean!

So now once an Administrator is appointed they can make recommendations about how services are configured at the specific trust but also in other trusts, even though there is no obligation to do any kind of impact analysis on those trust imposed upon.

So in the Lewisham example services could be closed at Lewisham even though Lewisham was not failing and did not agree to the changes.  Worse still such changes would only be subject to restricted and limited consultation thus evading the lengthy and exhaustive reconfiguration process.

Given the parlous state of the finances even in the flagship Foundation Trusts, and the fact that dozens of trusts are “unsustainable” by definition as they will never get to be Foundation Trusts the route is open to reconfiguration by the back door on a huge scale – nowhere is safe.

This is absolutely wrong but probably unworkable.  It is for commissioners (and to a limited extent patients by exercising choice) to decide about services, so if a commissioner disagrees with a recommendation they can ignore it – and there is no power to compel them to do otherwise. Or they could agree and later change their minds!  If a recommendation affected a Foundation Trusts then again they can ignore it and cannot be compelled, any attempt by the regulator to use licensing provisions would probably end in Court.  Trusts in Wales could be affected by changes in the West Midlands!  Some changes (as in Mid Staffs) may require major capital investment so what if that request is not approved or fails a value for money test.  Etc.

The reality is that these changes require funding (in hundreds of £millions), transition planning and system wide governance that may have to be there for many years until the whole system settles down again – in Stafford at least 5 years.  But there is no strategic authority to make that happen; and autonomous bodies may change their minds or external events may change the options anyway.  Or most likely of all the assumptions made by the highly paid but totally unaccountable advisors will turn out to be wildly inaccurate.

And just in passing there is a big issue around “unsustainable”.  In practice a very expensive team of management consultants make some financial projections and prove expenditure will be greater than income; job done.  As we know these management wizards can project any answer you want. The assumptions made are key.  So a small acute trust with a high proportion of emergency care might be unsustainable on one set of assumptions but if you assumed reform of emergency tariff and that CCG allocations moved on to the new formula then you could get a different answer.  And a trust recognised as unsustainable becomes sustainable just because you bring in a private sector management team who will, as if by magic, claim to be able to make much greater levels of financial savings without any impact on quality of care – at least until reality creeps in.

The NHS is not just a collection of autonomous independent entities.  Change in one will have implications for others; they are interconnected in complex and unpredictable ways. And predictions of future activity and so income and expenditure are notoriously inaccurate and can be blown away at a stroke by policy changes.

To pretend otherwise is bonkers.

Government moves to make it easier to shut hospitals without consultation by Caroline Molloy

 

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