Health bill gives too much power to Whitehall

As we recover from the pandemic and look to ‘build back better,’ enhancing local integration of health and care services will be crucial. The health and care bill, which is passing through parliament at present, is widely accepted by NHS leaders as the right way to help do this.

It proposes to embrace partnership working by bringing together local government and voluntary, community and social enterprise organisations to improve population health and address health inequalities.

Far from being a top-down reorganisation, healthcare leaders have worked with the government to drive the substance of the reforms. We agree with the government that implementing them now is a prerequisite for embedding and scaling the innovative ways of working established during the pandemic.

Achilles’ heel

The bill does, however, have an Achilles’ heel. Schedule 6 gives significant, unchecked and burdensome powers to the Secretary of State for Health and Social Care to intervene at any stage in decisions about changes to local healthcare services.

In practice, this could mean ministers in Whitehall being accountable for day-to-day operational decisions about the location or type of treatment provided by local NHS GP and dentistry services.

It is also in the interests of service providers, patients, their MPs and the Secretary of State that these powers have checks and balances and that any decisions are made based on clinical expertise and, ultimately, the needs of patients.

As the government’s own impact assessment shows, this will add little value, delay important service changes, and undermine clinical decision-making, while giving ministers the blame for sometimes unpopular but clinically necessary changes.

There are, of course, important reasons for the Secretary of State to have oversight of service changes — namely to ensure public accountability, giving constituents assurance that any grievances expressed to their MP will be escalated.

However, it is also in the interests of service providers, patients, their MPs and the Secretary of State that these powers have checks and balances and that any decisions are made based on clinical expertise and, ultimately, the needs of patients.

Local changes must be made by local leaders

While the Secretary of State has an important role in defining national strategy and policy, decisions about local service changes should be made by the local leaders who oversee and deliver them every day. Leaders who have a detailed knowledge of their own community’s systems and the interests of their patients. Leaders who are also ultimately accountable to parliament and the taxpayer.

There is also no need for new powers as there is already a well-established process in place for consulting on changes to local services. Under current arrangements, the Secretary of State can intervene in a reconfiguration of services after receiving a local authority referral, at which point they may commission the Independent Reconfiguration Panel (IRP) to provide recommendations.

After this, the Secretary of State can ‘call in’ a decision. The proposed changes would override this clear process and there is no guarantee of any local or clinical input into Whitehall’s decision.

System oversight, not day-to-day management

Above all, the Secretary of State would be ill-advised to want these powers. This country is not as it was in 1948. Over the past seven decades the NHS has moved beyond the oft-quoted Nye Bevan adage that if a bedpan is dropped in a hospital corridor, the clamour should echo in Whitehall.

Ministers could be embroiled in decisions not just about major reconfigurations, but relatively minor reconfigurations such as changes to dentists’ opening hours.

Past Secretaries of State agree that ministers should not be involved in the day-to-day nitty-gritty management of the NHS. In the words of Jeremy Hunt: “I felt accountable for the NHS … I never felt that I couldn’t get the NHS to do what I needed it to do and wanted it to do.”

While the Secretary of State understandably wants oversight of systems which will have far-reaching remits and legal duties, he could end up with a large in-tray of letters notifying him of potential service changes that he is expected to arbitrate. Ministers could be embroiled in decisions not just about major reconfigurations, but relatively minor reconfigurations such as changes to dentists’ opening hours.

Aside from making the Secretary of State and the department vulnerable to a litany of judicial reviews, this could become a huge bureaucratic burden for the department and the local and national bodies awaiting decisions. It may distract government time from bigger national issues and there is also a real risk that public trust is undermined.

Recommended amendments to the bill

Without a requirement for the Secretary of State to justify why a decision on service reconfiguration is in the public interest, it may be hard to convince the public that decisions about their local services are being made based on clinical, not political, rationale.

To address this issue, the NHS Confederation, Local Government Association and the Centre for Governance and Scrutiny have recommended amendments to the bill. These would require the Secretary of State to consider clinical advice from senior local doctors and justify publicly why the decision made is in the public interest.

It also requires that the views of local health overview and scrutiny committees are taken into account, providing accountability outwards to communities, not just upwards to Whitehall. Our joint proposal also has support from the British Medical Association and National Voices.

As the bill returns to the House of Commons for the report stage this month, we urge MPs to interrogate what they, the Secretary of State, service providers and patients would stand to gain from giving the health secretary such significant powers over clinical decisions.

This article first appeared in The Times on 22 November 2021.

Matthew Taylor is chief executive of the NHS Confederation. You can follow Matthew on Twitter @FRSAMatthew