Professor Chris Newdick, University of Reading
21st February 2017
The idea that more competition would improve the NHS is history. Now, STPs are encouraging partnership and collaboration. Let’s agree that STPs are a good idea in principle. Let’s give them a chance. But what are the challenges?
Public health could be better served by CCGs, GPs and local authorities working together. CCGs could integrate commissioning by re-inventing their old PCT boundaries. Better co-operation between GPs and secondary care might make hospital stays shorter and less frequent.
But to say “do more, with less, and do it better,” camouflages some difficult decisions. Attempts to close hospitals are always difficult and measures to control non-communicable diseases can expect newspaper rants about the “nanny state” and “food fascism.” STPs may benefit some, but will certainly upset others.
There’s a weight of expectation on STPs. Just as NHS investment per patient is falling, patient numbers are rising and the population is ageing, so the per capita cost of treatment is increasing. Government will need a steady nerve to see this through.
This is challenging enough in politics, but who is accountable legally? What authority do STPs have over the NHS to respond and who is responsible in law for what they do? The legal principles governing statutory authorities are reasonably clear.
- Statute may impose duties upon the Secretary of State to perform certain functions, eg on the Health Secretary to promote a comprehensive health service.
- Statute may also delegate these statutory duties to other public authorities to perform, like NHSE and CCGs, (as in the NHS Act 2006). In this case, it is they, rather than the Secretary of State, that are normally responsible for performing them.
- Subsequent statutes may modify, amend or abolish parts of one statute by replacing them with another (as the Health and Social Care Act 2012 does with the NHS Act 2006).
- Duties delegated to statutory authorities must be performed lawfully and reasonably (eg CCG resource allocation). Crucially, however, they must be performed by the authority itself. For example, CCGs cannot “fetter their discretion” by delegating performance of their duties to others.
The problem is that STPs have no statutory identity. Although Simon Stevens is proposing they should be given “decision rights,” until then, the NHS is confined within its current legal framework. For example, CCGs can take advice from STPs and should treat it seriously, but they still remain the statutory point of accountability for the policies introduced.
Of course, NHS managers are notoriously compliant. They mostly do as they are told, or retire gracefully on agreeable terms. CCGs, local authorities and GP practices will probably fall into line and act in the interests of the larger STP community. So the challenge is unlikely to come from them. To say STPs have no statutory authority, therefore, is not to say they have no actual authority. Never the less, they are vulnerable to attack.
More likely are challenges from patient groups unhappy about the new patterns of resourcing. Judicial review courts scrutinise whether the public authority’s statutory discretion has been “fettered.” In such a case, the policy could be overturned and referred back, eg to the CCG, to be taken again consistent with the court’s instructions. This would need to happen only once for STPs to lose their credibility.
In principle, the solution is easy – amend the NHS Act 2006 (and all the 2012 Act amendments) to give STPs proper statutory identity and to describe precisely when and over whom they have authority. But the 2006 Act has already been so heavily amended by the 2012 Act that we need on-line technology to find out how much has been changed and when. To introduce another statutory layer of STP “decision rights” with such significant organisational consequences would further confuse an already confusing system.
We all understand the problems created by successive NHS “re-disorganisation.” Sir Robert Francis warned about it in the Mid-Staffs Inquiry, just after the 2012 Act became law. Constant readjustments confuse everyone and make it more difficult to discover who is responsible for doing what.
Yet, within a regime of public service austerity, where conflict becomes more likely, clear lines of responsibility are more important, not less. If the basic logic of Andrew Lansley’s reforms is now rejected, it is difficult to introduce new NHS institutions and patterns of accountability without appropriate changes to NHS legal structures.
Now is precisely the time to be clearer than ever about rights and duties in the NHS. We need a new National Health Service Act to stabilise the NHS and make it fit to confront a future very different from its past. With so many competing demands for NHS resources, how can we re-invigorate its links with the community? With the rising personal and financial burden of avoidable illness, how can we reduce the costs of non-communicable diseases? How can we generate better harmony between health care and social care? How far should England follow Scotland and Wales and abolish the purchaser-provider split?
International trade complicates accountability further. If Liam Fox is considering a trade deal with the US, will private corporations be excluded from making profit from the NHS? If not, will they be regulated by judicial review, the Human Rights Act and the Freedom of Information Act like other NHS institutions? Or simply by confidential, private contracts that we have no right to see? Will disputes be settled transparently in public courts, or out of sight in private arbitrations? And will publicly appointed judges decide these cases, or corporate lawyers with little understanding of the NHS?
Austerity and globalisation confront the NHS with special challenges. The problems of accountability are really just beginning.