Another ‘fudge’ for the NHS as Simon Stevens takes over NHS Improvement

On Friday 1 March, Alastair McLellan, editor of the HSJ tweeted “OK HEALTH POLICY WORLD – ARE YOU SITTING DOWN? If not, I suggest you do.” This was followed by the publication of a ‘breaking and exclusive’ story that NHS England and NHS Improvement are to merge with Simon Stevens at the helm, whilst Sir Ian Dalton had immediately resigned and Matthew Swindells’ job is under threat (although the latter should come as no surprise given the move to put NHS Digital into the DoHSC  in the new NHSX department).

There are different elements of this story which should cause concern. The first and most immediate is the sensationalist approach, along with the fact that this major change (‘seismic’ as the journal says) has not been announced via a government or NHSE/NHSI press conference but by the HSJ. It might be said that it has been signalled for a while and so was not entirely unexpected, but clearly it wasn’t that expected or McLellan’s tweet would not have been so breathless. It is worth pointing out that the HSJ is not a main stream news publication available to the general public but a privately owned trade paper which is behind a paywall. It nonetheless appears to have a privileged relationship with the government, given its daily ‘exclusives’ on matters of health policy and procedure.

Only the day before the HSJ had reported on talks starting between the boards of NHSE and NHSI about a full merger of the two bodies and about making a case to the Secretary of State H&SC, Matt Hancock, for the necessary legislative changes.  Ian Dodge, NHS England’s national director of strategy and innovation, said the proposals included removing the NHS from public contract regulations to create more flexibility about what goes out to procurement. They also suggested letting commissioners award contracts to existing providers will allow NHS organisations to develop new models of care, which current competition rules discourage. The legal plans also said new standing rules will be set for commissioners to “strengthen” patient choice.

But – bang – the merger is announced. It contains what should now be familiar to followers of Stevens’ cavalier approach to legislation – a work-round, or fudge. It would appear that, not to put too fine a point on it, what Stevens wants Stevens gets. When he was presenting an advance indication of the intentions of his Next Steps to the House of Commons Public Accounts Committee  in 2017 he said:
“We are going to formally appoint leads to the 44 STPs. We are going to give them a range of governance rights over the organisations that are within their geographical areas, including the ability to marshal the forces of the CCGs and the local NHS England staff. We will probably get about 6-10 of them going as accountable care organisations or systems. … We will nevertheless, within the letter of the law, act according to the spirit of what I have just described and push as hard as we can without parliament itself having to legislate. If at some point down the line you choose to do so, that will no doubt be a welcome recognition of where the health service will have moved to in the meantime.” 

In the current case the ‘within the letter of the law’ involves appointing a Chief Operating Officer (COO) across the two organisations now with Stevens as sole CEO of both. The COO will report to Stevens on most issues but “for regulatory purposes” to NHSI chair Baroness Dido Harding providing the necessary ‘letter’ of the law . A second ‘surprise’ of HSJ’s announcement is that there are already five names in the hat for consideration for the COO post despite the fact that the post has not yet been advertised – or even known about.

Regardless of these irregularities we are in no doubt that some MPs, campaigners and think tanks will welcome this move as another sign that competition – and therefore privatisation – in the NHS is finally being brought to an end. The desires of the two boards to see an end to the s75 competition rules in the Health & Social Care Act (2012) and an exemption from public contract regulations will be seen as steps in the right direction. Indeed the GMB is currently campaigning for the abolition of s75. But we would urge caution. Recent changes to the H&SCA were brought in by Statutory Instrument – this is also known as ‘secondary legislation’ – which can be done quickly and without debate or vote in parliament. Further changes can be done the same way. But using this process, rather than primary legislation, parliament has neither scrutiny nor vote. Even in the event that there was a clear presumption that Simon Stevens’ template for the NHS was the most desirable model possible, it is still an undemocratic and dangerous precedent to allow any head of any QUANGO to circumvent the due process of law making or to ‘fudge’ the issue. And the creation or dismantling of executive arms’ length bodies is a proper function of primary legislation.

In January 2016, on the BBC’s Week in Westminster, Huffington Post editor Paul Waugh who described Stevens as “the last Blairite cabinet minister” asked Alastair McLellan for his assessment of Stevens’s political influence. Mr McLellan replied, “I believe he has more power than any cabinet minister. After the prime minister, the chancellor and [Bank of England governor] Mark Carney, he’s probably the most powerful person in the country.” 

By taking over the leadership of NHSI whilst remaining as CEO of NHSE, Stevens will be creating at the top of the hierarchy a structure very much like the Integrated Care which he wants to see rolled out across the 44 NHS STP areas. That is to say commissioners and providers under the same organisational management. As Commissioner-in-Chief Stevens will be responsible (as now) for the allocation of budgets, setting financial targets and more – but as leader of the provider body he will also be responsible for the spending of those budgets and achieving the targets. Across the NHS in England as a whole to date there has been either an inability or an unwillingness in some provider organisations to fully embrace the 5YFV’s mission. Changing to the new system means selling off property, down-skilling staff and providing treatment in fewer locations in ways which inevitably mean a denial of care. Not everyone has sufficient faith in untested technology, diagnosis by algorithm, or the power of care in the home to drastically diminish the need for hospital beds to take the risk entailed in the New Models of Care. Some are simply too financially constrained to be able to try. But Stevens has extended his power to potentially force change through, including the creation of new ‘integrated trusts’.

When the news of the discussions of the two boards was announced on February 27th, NHS Clinical Commissioners warned that joint appointments between providers and commissioners “could have significant issues for managing conflicts of interest and in taking decisions around procurement”. They should know as it is an issue they have had to face many times. This warning is a reminder that these new arrangements are not the hoped-for renewal of a planned and genuinely integrated NHS. This is not, in any meaningful sense, the end of the ‘purchaser/provider split’.

 

Secondary legislation can be opposed by a ‘parliamentary prayer’. 999 have persuaded Jeremy Corbyn and Jon Ashworth to do just that, see the campaign here.

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