The Health and Care Bill explained

Peter Roderick was one of the speakers at yesterday’s online event: Ending NHS Privatisation – For a National Care Service. Below we reproduce his contribution.

The Health and Care Bill has been a long time in the making, and much of it is already in place, as NHS England and its former CEO Simon Stevens have for years been working around Andrew Lansley’s Health and Social Care Act 2012 to get it up and running on a de facto basis.

It is a major reorganisation of the NHS in England. It is quite revolutionary in that the state will continue to fund health care, but is largely abstaining from being involved in its organisation. The reforms hand over most power and decision-making to public-private joint ventures without statutory duties, and break decisively with the Beveridge or Bevan model of a universal, comprehensive and accountable public service.

The official narrative is that the Bill is about integration and flexibility. But I would urge you not to stop thinking when you hear those warm-sounding words – because if you read the Bill and NHS England’s guidance, you will see that it does virtually nothing to integrate health and social care, and that flexibility is a cover for discretions, the absence of statutory duties and dilution of our enforceable rights to publicly funded healthcare.

In more detail, the Bill completes the detachment of funding, planning and provision from local areas and local people. England is being divided up into 42 Integrated Care Systems. The Systems are only in part statutory – they have two statutory components and three non-statutory components.

Each System will have a statutory Integrated Care Board which – just like the clinical commissioning groups they replace – will be membership-based. In other words, each ICB will commission most health services for the group of people allocated to it by rules to be made by NHS England, without parliamentary process, not for local residents. CCGs are already membership organisations – but at least Parliament decided in 2012 who they were responsible for.

Not only is Parliament failing to do this for ICBs, it’s only requiring them to have “core responsibility” for their members – a new concept that has not been questioned, but which echoes the definition of health maintenance organisations in the US, which provide ‘basic’ and ‘supplementary’ services to their members.

And unlike CCGs, an ICB will not be obliged to commission emergency services for everybody present in its area. An amendment in the House of Lords to remedy this, tabled by Baroness Finlay and Baroness Jolly got nowhere. It’s also, to my mind, telling that also unlike CCGs, ICBs will not have to have the letters NHS in their name.

Private companies will be able to sit on ICB boards and their committees, despite a weasel-worded government amendment, which doesn’t prevent it.

But ICBs are a veneer. As Lord Lansley has said, the real power will lie with non-statutory provider collaboratives. The Health Service Journal also reported on 2nd December 2021:

“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence (although the former may act through their representation on the latter). Many believe ICSs (sic) will become tiny organisations effectively operating as a population data provider for collaboratives and ‘place-based partnerships’, or disappear altogether.”

That’s pretty astonishing when you consider that it’s the ICBs who’ll be given the vast majority of NHS funding.

These are groups of providers not mentioned in the Bill with no provision for their transparency, accountability and membership. NHS England has said that “non-NHS providers should be part of provider collaboratives where this would benefit patients and makes sense for the providers and systems involved” – though those qualifications are pretty meaningless and obviously not a legal test in any sense.

ICBs will be empowered to delegate functions to providers and give providers “discretions” in their contracts, which are expected to be long-term and strategic. They will be able to have the budget devolved to them and they will decide what, where and how services will be delivered.

As for the second non-statutory component – so-called Place-based partnerships – these are described by NHS England as “the foundations of integrated care systems” – but will also include private providers – and they have no statutory functions, governance, membership requirements or accountability mechanisms.

The other third non-statutory groupings are Primary Care Networks – NHS England defines them as  “GP practices…working together with community, mental health, social care, pharmacy, hospital and voluntary services in their local areas in groups of practices known as primary care networks (PCNs).”

There are 1,250 of them, already operating under their network agreements, the content of which, the BMA says rightly, “is not within the remit of the CCG to challenge”. So obviously their agreements will not be in the remit of the ICBs to challenge. They will be represented on the ICB boards.

Finally, I should mention the other statutory component – the joint statutory committee between the ICB and local authorities in the ICB area – Integrated Care Partnerships. This might sound positive for integration but the statutory functions of the ICPs are limited to preparing an integrated care strategy setting out how needs identified in the joint strategic needs assessment will be met, and have no power or duty to implement the strategy.

Peter Roderick is a principal research associate at the Population Health Sciences Institute, Newcastle University and co-author of the NHS Reinstatement Bill.

Image: c/o Mike Phipps

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