As the political crisis tips over into a full blown constitutional crisis, the NHS in England remains highly susceptible to the ditching of constitutional conventions.
In fact over recent years a disregard for the traditions of British public administration and the constitutional settlement has seeped into how the delivery of healthcare is organised in England.
Whilst the Health and Social Care Act of 2012 has had many documented difficulties it is still the primary law which governs the provision of NHS services in England.
A significant part of this law is that it creates a distinct constitutional arrangement for how the NHS in England should be governed and its relationship to Parliament.
In short, the 2012 Act specifies a local administrative structure for the NHS and dictates the objectives and goals for NHS England which is established as a distinct public body at arms-length from Ministers.
Under this arrangement, Ministers set the budget of the health service and issue the NHS England board with a yearly mandate, in much the same way as the Chancellor sets inflation rate targets for the independent Bank of England.
This arrangement was designed to allow the NHS England the freedom to do what was necessary to deliver healthcare to the population, while keeping it on a sufficiently tight leash to ensure that it remains accountable to Parliament.
Yet it is not such an exaggeration to suggest that over recent years the current leadership of NHS England has been allowed and indeed encouraged, by Ministers to slip the leash and to pursue one of the most radical transformations of the NHS structure without any basis in law and without the approval of Parliament.
Thus, whilst Health and Social Care Act put in place a regulatory framework intended to deliver competition and patient choice, NHS England has taken the NHS in the exact opposite direction, promoting collaboration and co-operation, ditching the “purchaser-provider split”; abolishing the independence of body charged with regulating the market and setting prices; and overseeing the demise of the pricing mechanism which allowed “money to follow the patient”.
The NHS leadership has also invented an entirely new set of administrative arrangements for deciding how healthcare services are organised locally: 44 Sustainability and Transformation Partnerships (STPs), or “Integrated Care Services” (ICS) to subsume the functions of the 200 Clinical Commissioning Groups mandated by the Health and Social Care Act.
Yet no one can be certain of the legal basis for this new administrative structure, or the source of the authority of the people who sit in positions of considerable power and influence within it.
No definition is provided anywhere within the NHS 10 Year Forward Plan of an Integrated Care Partnership, or an Integrated Care Service, and – as NHS England has confirmed to us – Sustainability and Transformation Partnerships “are not legal entities”.
In fact, so unsure is the NHS of the legal basis for its reforms that it paid a management consultancy a small fortune to work out its legal responsibilities.
Yet each of these 44 new units is charged with making radical decisions about healthcare for their local populations – which services are available, who provides them, and how resources are allocated.
There are also significant questions about how individuals have been appointed to significant positions of power and influence within this new structure.
The Professional Standards Authority (PSA), which oversees the healthcare professional regulators and plays an important role in ensuring that appointments to the councils of regulatory bodies like the GMC are robust, has published 4 key principles for a good appointment process.
Under these principles the appointment process should be based on “Merit”. It should be “Fair”, “Transparent and Open”, and it should “Inspire Confidence”.
We sought to understand how the Chairs and the leads of the 44 STPS had been appointed, as well as their job description and who appraised them. And, because this information is not available anywhere on the NHS England website, we submitted a Freedom of Information request to NHS England to find out.
The response we received showed a highly inconsistent approach across England which does not inspire confidence in the integrity of the process.
Some STP chairs and leads have been appointed following open competition, others were appointed through the “local agreement” of unspecified “local parties”.
In the future STP leads will need to be appointed following an open competition; except where the person is a Trust CEO, a Senior Council Leader or the Accountable officer of a CCG – in which case the role does not need to be advertised publicly.
Of similar concern is the fact that NHS England was unable to provide a standard job description for the Chairs and Leads of the STPs nor an explanation of how their performance is appraised, thus presumably making it difficult to remove them from post for failing to deliver on the roles and tasks expected of them.
It is difficult to think of any other senior public appointments which are made in such an inconsistent way and with such an ill defined set of duties imposed upon them.
NHS England has also taken the extremely unusual step of running a public consultation on changes to its own primary legislation and presenting these proposals to Parliament for “pre-legislative scrutiny”.
Yet the power to both consult on primary legislation and to propose legislation to Parliament is constitutionally invested in Ministers and Government departments and is not a power which is granted to non-departmental public bodies like NHS England.
This is to ensure that it is only elected officials (i.e. Ministers) who initiate parliamentary legislation, and not unelected officials like the leadership of NHS England.
When we asked NHS England to explain the statutory basis for consulting on legislative change they referred us to the “catch-all” provision which is given to all public bodies which enables them to do “anything” to facilitate their statutory duties.
One might argue that relying on such a general power is a very weak legal basis for up-ending a well established constitutional convention.
Many politicians and those working in the NHS are prepared to overlook the “unconstitutional” nature of the current NHS reforms because they agree with Simon Stevens’ view that the health service needs to move away from the competitive market enshrined in the 2012 Act.
Others are prepared to overlook the lack of Parliamentary approval for these reforms because they see this “ultra vires” approach to health service management as a pragmatic response to a deeper political crisis.
Yet none of these are good reasons to overlook the demands of public law.
In a democracy, the power to take decisions over which hospitals should close, or which treatments should be provided, or how budgets should be allocated should always be circumscribed by law. Otherwise abuses of power can occur, and decisions can be taken which are irrational, have unforeseen consequences, are unfair and infringe upon the rights of citizens.
The current media focus is rightly on the whether the Executive has overstepped its constitutional powers in proroguing Parliament. But it is wrong to believe that the NHS in England is in anyway insulated from this rejection of constitutionalism and the slow and dangerous drift towards the norms of a banana republic.