Fit for the future – our NHS legislation wish list

The Labour manifesto suggested tearing up the current NHS legislative framework – ‘We will repeal the Health and Social Care Act that puts profits before patients, and make the NHS the preferred provider.’ Even the Conservative manifesto suggested that they would be willing to introduce legislative change – ‘If the current legislative landscape is either slowing implementation or preventing clear national or local accountability… This includes the NHS’s own internal market, which can fail to act in the interests of patients and creates costly bureaucracy.’ Their ideologies may be different, but there is some cross party consensus that the current legislative framework is getting in the way. So will it be up for change?

Certainly change is desirable. The current health and social care legislative framework is a brick wall that STPs and ACSs run into when they try to share decision making and join up services. It is designed for an inherently non-integrated, competitive quasi-market. CCGs have a complex and much misunderstood legal framework. There is uncertainty about to what extent (if any) NHS England can delegate specialised commissioning. The section 75 partnership regulations (NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 No. 617) provide limited ability for a CCG to share its commissioning functions with a local authority. NHS foundation trusts simply cannot share decision making. NHS trusts are ham-strung by limited powers to invest in corporate bodies.

But there are big question marks over the possibility of significant new NHS legislation. There may be lack of clarity about the full implications of Brexit but we do know that it will be central government’s priority area for the next few years and is likely to absorb a huge amount of Department of Health resource. Will the Department of Health have capacity and energy to undertake NHS legislative amendment as well? Additionally there is still apparent sensitivity about the 2012 NHS reforms. Would a Conservative minority government really have a political willingness to undertake significant new NHS legislative changes?

What might be some legislative changes that would enable the NHS and local authorities to integrate services and develop and implement STPs and ACSs? We suggest some below. Some may be more controversial than others, but they all recognise the reality that the NHS (steered by NHS England and NHS Improvement) is in many ways already reversing out of a competitive quasi-market back to a centrally directed system where the purchaser-provider split is abolished and foundation trust autonomy offers few if any benefits.

We suggest that the aims of legislative reform should be threefold: to enable integration, to facilitate accountable care systems and to remove the differences between NHS trusts and NHS foundation trusts. We think that the necessary legislative changes to the NHS Act 2006, the Health and Social Care Act 2012 and regulations might be relatively modest. A starting point for consideration could include:

1. Give foundation trusts and NHS trusts equivalent collaboration powers by enabling them both to:

• Appoint committees comprising or including persons who are not directors
• Exercise functions jointly with other NHS bodies
• Delegate the exercise of functions to other NHS bodies
• Appoint joint committees with other NHS bodies
• Invest in corporate bodies such as companies and LLPs.

2. Reintroduce the power to de-authorise a foundation trust so it reverts to an NHS trust as an alternative to trust special administration.
3. Amend section 57A of the NHS Act 2006 to remedy uncertainty about the effectiveness of the powers to dissolve an NHS foundation trust.
4. Enable NHS foundation trusts to opt to agree NHS contracts instead of legal contracts.
5. Amend the section 75 partnership regulations to remove restrictions on what NHS commissioners (CCGs and NHS England) can delegate to local authorities and vice-versa.
6. Amend section s13Z of the NHS Act 2006 to confirm NHS England power to delegate specialised commissioning to CCGs.
7. Make new regulations to permit NHS England to delegate all primary care and specialised commissioning to CCGs and local authorities.

Pending any legislative changes, the NHS and local authorities will have to continue to work innovatively and flexibly to develop and implement STPs and ACSs.

Hempsons is currently advising many STPs and ACSs and would encourage and welcome further discussion to refine what legislative change would be desirable, pragmatic and possible to facilitate the development of STPs and ACSs for commissioning and delivering integrated care that is fit for the future.

Please contact Adrian Parker if you would like further information or otherwise to discuss this article.