21/03/2012

Health Lexcomm : Health and Social Care Bill passes final hurdle

“It’s not been our finest hour” said a senior member of the Cabinet to Lexcomm. 

And it hasn’t.  As the Health and Social Care Bill finally limps onto the statute book in the coming weeks, we consider some of the key legislative changes and the impact they will have in the reformed NHS.

Commissioning in a reformed NHS.

The central part of the Government’s NHS reforms - the introduction of Clinical Commissioning Groups (CCGs) – has focussed on transferring commissioning away from largely managerial control into the hands of clinicians, principally GPs.  These CCGs will be supported and held to account by a powerful and independent NHS Commissioning Board that will also tightly control which CCGs are authorised to spend NHS money.

The exact authorisation process is yet to be determined, but CCGs will have to satisfy the commissioning board that they are competent across a number of domains which, unsurprisingly, are broadly similar to the duties of a Primary Care Trust.  Those CCGs that either do not wish to commission services themselves, or are deemed not competent to do so, will have their commissioning functions performed by the NHS Commissioning Board.

The concern is that these arrangements will see a two tiered approach to commissioning with, for instance, CCGs under central control perhaps favouring NHS providers, while authorised CCGs are more able to drive improvements in services for their patients.  Patients will only be able to choose between the two types of commissioning groups if the Government are successful in relaxing GP practice boundaries.

Specialised commissioning

The only function to benefit from the centralising approach of the legislation is the little known but big spending process of specialised commissioning.  The piecemeal collection of Specialised Commissioning Groups (SCGs) has delivered patchy care for patients with rare and complex conditions, principally because funding for these conditions was previously routed through Primary Care Trusts.

This £10.5bn worth of spending will now fall under the control of the NHS Commissioning Board resulting in greater consistency in policy and reduced transaction costs for organisations with an interest in this area. 
There are broader concerns, however.  Will services from SCGs be transferred en masse or be re-created by the Commissioning Board? And will the £10.5bn budget be an easy target for a cash strapped NHS in 2014 and 2015?

Commissioning Support Organisations

Since authorised CCGs will be free to determine how they carry out their responsibilities - including the purchase of commissioning support - the development of this market will be a key battleground.  The expectation is that commissioning support will be provided by a range of organisations – private sector, voluntary and public sector spin offs in the form of mutuals. 

The NHS Commissioning Board is to offer arm’s length support to Commissioning Support Organisations (CSOs)which are effectively the remainder of in-house PCT and SHA staff.  This arrangement does, however, raise a number of issues from a legal, conflict and competitive point of view.

Competition in the NHS

Monitor
During the passage of the Bill, Monitor has received a subtle change in title.  It is now to become known as the ‘sector-wide regulator’ rather than the ‘economic regulator’ albeit that its function remains the same.  It will have economic responsibility for both health and, in the future, adult social care with a core duty to protect and promote the interests of patients. 

Concerns that competition would be pursued as an end in itself have been allayed with changes which seek to limit ‘cherry picking’ of easy but profitable cases by the private sector.  Prices for NHS services will now be set by agreement between Monitor and the NHS Commissioning Board, perhaps with some form of weighting to the NHS tariff to reflect complexity of case mix.

Monitor will continue to act as the regulator for Foundation Trusts with the timetable for all hospital, mental health and ambulance trusts reaching this status by April 2014. Approximately 40% of acute trusts have still yet to attain foundation status and how and whether these organisations are granted freedom from the NHS Commissioning Board will be another test of the Government’s reforms.

Any Qualified Provider
The Government’s goal is for patients to be offered a wider choice of providers – public, private or voluntary - when they are referred for NHS treatment by a healthcare professional.  It is this policy, more than any other that has opened the Coalition up to accusations that the NHS is being privatised.

Whereas Labour was able to originate a similar policy utilising the language of ‘patient choice’, the Coalition have been hamstrung by their original references in Part 3 of the Bill to ‘competition’ and ‘pricing’.  Andrew Lansley’s “sub-optimal communications skills” in this regard have not helped the Coalition’s cause.

Private, voluntary or mutual organisations wishing to provide NHS-funded services will now have to be licensed by Monitor and the Care Quality Commission via a joint licensing process. While providers will have concerns about an all too onerous regulatory regime, the phased implementation of Any Qualified Provider, which is already underway, only opens up the NHS to a very small additional amount of competitive pressure in the short term.

A further list of services to be opened up to patient choice from 2013 onwards includes maternity (antenatal education and breastfeeding support); self management support for long term conditions; and community chemotherapy, including home chemotherapy.

In the future

From a political perspective the legislative battle is finally over, although the Conservatives will remain a deeply damaged party when it comes to the NHS.  Their credibility will surely be tested when in campaigning for the 2015 election they will, once again, have to promise no top down re-organisations to the NHS?

The real risk for the Coalition partners comes from the public and professionals equating the changes coming from the Act with austerity and cut backs required in order to meet the £20bn efficiency target.  There are two and a half years of painful transition which will only reinforce the public perception that these are the wrong set of reforms.

From a policy perspective, the Nuffield Trust and King’s Fund will continue to bang the drum for a faster move towards integrated care.  And since virtually every NHS organisation both old and new will now have a ‘duty to integrate’, greater collaboration between organisations looks likely.  Working out exactly how this is done should have been Andrew Lansley’s priority from the start.

The Health and Social Care Bill in numbers
Pages at start: 367
Pages at end: 472
Days in Parliament:           426
Days in debate:   77
Amendments: 402 from the Commons
374 passed by the Lords

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