The Health Bill still rests on the view that competition is the answer and it must be allowed to flourish, free from anti-competitive behaviour. The Bill sets out the framework which brings in a regulated market system, and all the necessary components to do this remain. The timetable, constrained by reality, has been slowed down.
The role of the Secretary of State has actually been weakened further. The amendment 174 says the Secretary of State “must exercise the functions …. so as to secure that services are provided”. This replaces the current duty “to provide or secure the provision of services”.
The end of the comprehensive NHS is signalled as the current duty that the Secretary of State“must provide (NHS services) throughout England” is replaced by “A commissioning consortia must arrange for the provision … to the extent as it considers necessary”.
Local commissioning is fragmented. There is even greater scope for confusion now between the roles of the NHS Commissioning Board, The Quality Board, the NHS Constitution, Monitor and the Care Quality Commission. The system architecture is now far more complicated than it has ever been.
The NHS Commissioning Board represents major centralisation. It is the biggest quango in the world and gets additional powers, contrary to the concept of autonomy. It retains the role of commissioning local services such as GPs, Dentistry, Pharmacy, contrary to any idea of local control. The role is not changed except to introduce some new duties around promoting the NHS Constitution, involving patients, carers and representatives, and around integration (not defined).
The preferred provider approach is outlawed. There must be no exercise of functions for the purpose of causing a variation in the proportion of services provided by the public or the private sector. However, the clause is impossible to apply as no definitions or measures of current proportions exist and the “purpose” is different to any outcome.
The issue of coterminosity with local authorities is not addressed. Consortia should not cross local authority boundaries but need not be coterminous (but not in the legislation). GP practices have to become members, there is no opt out.
Top down prescription for consortia. Consortia must now have a governing body which will be the subject of guidance by the NHS CB and many regulations . They could also have Boards making them like Foundation Trusts. It appears that GPs still have to be regulated by Monitor as providers, as well as consortia.
There is no formal provision for clinical networks or senates and no requirement (apart from a very general one) to have regard to what they might recommend. The hierarchy between NICE, Networks, Senates and Health and Wellbeing Boards all of whom may have different views and all must be taken into account by consortia, is not addressed.
A wider range of consortium board members. There will be a mandated role for two lay people, a nurse and a secondary care clinician and scope to involve others, but subject to unseen regulations. There are now members of the consortia and members of governing body which is confusing.
Money can still be distributed to members, including the lay members. The quality premium, which allows payment for effective financial management, is retained but subject to further rules.
250 plus consortia has become more likely. The issues raised by the Health Committee are not addressed. Nothing has been said about the commissioning support suppliers which are being developed.
Patient and public involvement is strengthened with a new requirement for commissioners to consult over any changes in services (which is unworkable).
The full role of scrutiny is not restored but could be if as suggested designation is removed from the Bill at a later stage.
Choice and competition are reinforced. The duty to promote competition is replaced by a duty to prevent anti-competitive behaviour. The involvement of the Competition Commission and the competition acts remains, as does the licensing regime which allows Monitor to regulate the system. The intention to continue with the current rules around cooperation and competition and to keep the Cooperation and Competition Panel has been stated.
No changes are made around designation or the failure regime (insolvency provisions) – but further changes later are likely. The end of “designation”, which is where a service cannot be closed down because there are no reasonable alternatives, has been signalled.
The intention to prevent price competition and cherry picking may or may not be resolved. There are many changes to the proposed Tariff system and around setting prices, the impact of which will depend entirely on how they are implemented. There is no mention of the use of “best value” in relation to contracting for non tariff services.
No change is to be made to health and well being boards. The ability to disagree over commissioning plans is retained but there is no dispute resolution process or any requirement to reach agreement. The many-to-many nature of the relationship between consortia and HWBBs remains.
New clauses have been introduced the purpose of which is unknown. The duty of the Secretary of State to keep the effectiveness of the system under review links to the reduced duty only to exercise functions so as to secure that services are provided.
There is a new requirement that appears to force choice of any provider which would also include choice of GP Practice.
Any willing provider is enhanced. A new concept of a “fair level of pay” for providers gives scope to vary payments according to the different costs profiles of providers, but how this might be operationalized is unclear. The same clause also seeks to enforce moves to standardisation of health care specifications – all of which looks to be supportive of the drive to any willing provider type models.
There is no recognition of the role of the Cooperation and Competition Panel. Although this may be there by inference, it is not put on a statutory footing. The duty of candour is not brought in, and other assurances given in response to the Future Forum are not implemented.
It’s a mess.
Some concessions have been made to improve accountability, down play the role of competition, reduce the active role of the regulator and to stress the need for greater patient and public involvement, for integration of services and for proper regard to the NHS Constitution.
But there is far greater bureaucracy, little cohesion in the architecture, a very preseriptive regime for the consortia and still the emphasis on moving to a market system with many providers competing for the patients.