Much has been written about the publication of the NHS Long Term Plan (“LTP”). The NHS Confederation has provided a particularly useful summary, which can be accessed here.

The main focus of the plan is to implement a new service model, with particular focus on the improved access to services, early diagnosis and prevention of certain diseases (including diabetes, strokes, dementia and cancer), and improved access to mental health services for both adults and children. In order to improve access to services, the plan sets out ambitions for better integration between primary, secondary and community services for patients.

This note highlights some of the legal implications of the LTP. The plan is novel in highlighting a series of legislative asks of Government.

Legislative Change Asks

In order to achieve implementation of the new service model for the NHS, the LTP outlines the following proposed amendments:

1. changes to legislation governing the NHS, to shift the focus from individual institutions working autonomously to institutions working together. In particular, making it possible to create Integrated Care Providers (“ICPs”);
2. introduction of shared statutory duties for CCG’s and trusts to promote the ‘triple aim’ of better health for everyone, better care for all patients and sustainability for their local NHS system and the wider NHS;
3. giving NHS foundation trusts the power to create joint committees with others to allow the creation of joint commissioner/provider committees in every Integrated Care System (“ICS”);
4. removal of the Competition and Market Authority’s (“CMA’s”) ‘duties’ under the Health and Social Care Act 2012, which ‘require’ the CMA to intervene in NHS provider mergers. Removal of Monitor’s competition role is also suggested;
5. repeal of the specific procurement requirements for the NHS under the Health and Social Care Act 2012 and removing the application of the Public Contract Regulations to the NHS. It is proposed that there will be the introduction of new statutory guidance and a ‘best value’ test.

Are the Legislative Asks Achievable?

Procurement

The LTP sets out that, at present, procurement law prevents the “rapid integration of care planning and delivery”. Legislative change is sought to help achieve the LTP’s intended better delivery of integrated care and to save costs.

Unfortunately, whilst consistent with the integration agenda of the LTP, the ability to reform procurement law is uncertain, as much will depend on the Brexit terms. When the UK leave the EU, the current draft amendment regulations allow for procurement legislation to stay largely the same immediately following Brexit and during the Transition Period. This position is not consistent with the legislative asks. For more detail see our note here. Other exit scenarios that preserve a Customs Union are also likely to preserve the procurement rules as is.

A no deal Brexit could (under the GPA rules) give the required flexibility to implement the legislative asks in this area but this would require new legalisation to be passed and this will take some time. Additionally, in the event of a no deal Brexit, most commentators agree that the Government will have a number of pressing issues on its plate and this may not be the priority.

If a ‘best value’ test is brought in, then the extent to which costs can be reduced and flexibility to integrate increased by substituting one statutory framework for another will depend upon the detail of the new rules. Any appeals procedure available to challenge decisions will be particularly important in this regard. Previous non statutory regimes within the NHS, such as the Principles and Rules for Cooperation and Competition (the PRCC), still provided an appeals process and the ability to challenge decisions. Now that the health system expects to be able to scrutinise and potentially challenge commissioning decisions, any such appeals process may be more heavily used than previously.

The LTP focuses on collective endeavour in order to save costs and prevent fragmented provision, particularly in primary care. Work is currently underway to centralise procurement for NHS trusts via the NHS Supply Chain’s Operating Model (NOM) and it is possible that, if legislative change is not forthcoming, the NHS may look to adopt similar procurement structures for primary care providers. Alternatively, primary care providers may seek to join existing procurement frameworks in order to reduce costs. Collaborative procurement initiatives such as this would certainly help with regards to the procurement of supplies, works and some services. Such initiatives are useful system level initiatives in any event. The need for legislative change relates only to the procurement of healthcare services.

Competition

The CMA has published guidance on its approach to reviewing NHS mergers (available here). Whilst the CMA acknowledges the potential benefits of NHS mergers (including financial, better delivery of integrated care and the sharing of best practise), it also points out that it is the gradual introduction of choice and competition which has given rise to the CMA’s role in this area.

The CMA’s role is to ensure that any merger between trusts does not adversely affect patient interests by way of a reduction in clinical quality and safety through lack of competition. In reality, the CMA does not review all mergers, NHS or otherwise, and there is no ‘duty’ to do so. The CMA confirms that, since 2010, they have only prohibited one NHS merger (The Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust and Poole Hospital Foundation Trust in 2013). The argument that engaging with the CMA regarding NHS mergers creates unnecessary bureaucracy appears to be well founded on the basis of this statistic.

However, a recent study, published by the CMA in January 2019, suggests that a lack of competition resulting from NHS mergers can increase patient harm rates by approximately 41%. It is, as yet, unclear how accurate the CMA’s estimates are but the conclusion of this study may influence future CMA decisions and therefore indicate a change in direction for the outcome of any future NHS merger reviews.

In light of the recent CMA study, and the policy issues surrounding the CMA’s role in NHS mergers, it may be difficult to remove the CMA’s role in NHS mergers entirely. However, it may be possible for there to be work on the introduction of thresholds for the CMA’s involvement in NHS mergers, be this on a financial, geographical or population share basis for example.

The LTP also proposes the removal of Monitor’s (now part of NHS Improvement) competition role. If accountability for potential adverse effects on patient outcomes resulting from NHS mergers does not stay with the CMA, it is likely that Monitor’s role will remain, unless this can be placed with another body. Whilst it may be achievable to remove the competition role of either the CMA or Monitor, it may be unlikely that we will see the removal of both without a replacement being introduced. NHS Improvement aims to “give patients consistently safe, high quality, compassionate care within local health systems that are financially sustainable” and it could therefore be argued that Monitor is best placed to continue its role in reviewing NHS mergers, now that it is part of NHS Improvement.

Workforce

The LTP confirms that the NHS requires continued supply of trained doctors and nurses from overseas in order to properly staff the NHS as a whole. It is acknowledged that the post-Brexit migration system needs to provide the necessary certainty for health and social care employers.

The Government published its white paper on a future skills-based immigration system on 19 December 2018 and temporarily lifted the tier 2 visa cap for doctors and nurses on 6 July 2018; both of which are positive steps towards filling the NHS workforce gap.

However, whether the required certainty for health and social care employers will be achievable will depend on immigration policy decisions to be made by Government, particularly in the light of any Brexit settlement reached. A more detailed workforce implementation plan, developed by NHS Improvement and stakeholders, is due to be published later this year.

The LTP also states that it is ‘critical’ for individuals looking to register to work in the UK to move through regulatory processes quickly. This may require professional regulatory bodies such as the GMC and NMC to review their processes, and additional funding may be required for any increased speed in the registration processes.

Primary Care Networks (“PCNs”), Sustainability and Transformation Partnerships (“STPs”) and Integrated Care Systems (“ICSs”)

STPs and ICSs will have to formulate a PCN development plan as part of their role. There is no specified organisational form provided for PCNs in the LTP and it is, as yet, unclear how existing collaborative endeavours will fit under the PCN model. Given the increasing uptake on collaborative working over recent years (including the creation of GP federations, for example) it will be important that existing collaborative arrangements can be brought under the new PCN model, to ensure that any unnecessary additional administrative burden can be avoided in accordance with the LTPs aim. The increased interest in collaborative working, and the achievements thus far, certainly indicate that the PCN model will be both achievable and successful. We look forward to further guidance in this area.

Summary

The LTP highlights a number of legislative changes that are welcome to facilitate the move to more integrated models of care. Those requiring legislative changes will need to be given sufficient space in the Government legislative programme. Such legislative changes will however take some time to implement, especially as the current focus of Government is elsewhere.

The likely implementation of other legislative asks is less clear especially those linked to the outcome of the Parliamentary Brexit debates currently underway at the time of writing (February 2019). However, as acknowledged in the LTP, many of the changes required to achieve the plan’s purpose (i.e. better integrated care and costs savings) can be implemented under the current legislative framework.

If you have any queries on the impact of Brexit on procurement practice, please contact one of our specialist team.