Changing the NHS: Will new Regulations make it harder?

This is Blog No 58

New Guidance for the NHS and local authorities in England reveal some changes in the way we make the NHS accountable to local communities.

Right from the early days, Parliament struck a bargain with its electorate. Allow us to run the National Health Service as the most hierarchical, autocratic management structure that is the fifth largest employer in the world. And, in return we will build in a range of checks and balances so that there is just sufficient local accountability for its operation. A key feature of that deal has been the provision that significant changes to the manner or range of services delivered by this beloved institution cannot happen without public or patient involvement and, sometimes, consultation. The legislative framework for this has lasted over two decades or more and is largely unchanged by the new Guidance.

There are two documents, both published on 9 January.  One on Local Authority Health Scrutiny and one on Reconfiguring NHS services – ministerial intervention powers. The fundamental change they both address is the abolition of the power of Health Scrutiny Committees to refer a proposed NHS reconfiguration to the Secretary of State, and its replacement by a power to call-in such a proposal. As a request for a call-inalmost amounts to the same thing as a power of referral, why all the fuss?

Answer. Because many people view this as a significant shift in the power relationship from local NHS management to the Government, and the potential to politicise major decisions about closing hospitals, withdrawing services, or making unpopular changes to communities’ historic access to the NHS. In the past, Ministers have been wary of any identifiable involvement with these difficult decisions, preferring to sidestep direct responsibility and usually passing the controversies to the Independent Reconfiguration Panel whose experts have delved into the detail and recommended the best solution. Most Secretaries of State have been mightily relieved not to have to sit in judgement over disputes between local Managers trying to balance conflicting aims of easy access and optimal outcomes, and communities who object. Quite who in this Government thought it was a good idea to have a more direct power to intervene is something of a mystery. Possibly Matt Hancock after eating something suspicious in a jungle?

In some ways, however, the new arrangements may be more honest. They recognise a reality which has been camouflaged for years – namely that the Department of Health has been calling the shots in these matters.  As many community objectors have suspected, dialogue with local bosses has often been a case of addressing the monkey rather than the organ-grinder, and it might be better all round to acknowledge that reconfiguration decisions are frequently intensely ‘political’ – and sadly (as with the SNP in Scotland some years ago) ‘party political.’

Several aspects of the Guidance that come into force on 31 January 2024 will take some getting used to. Foremost is that any NHS body contemplating a substantial service change has to notify the Department of Health. I have just looked at the notification form. This is not simple, and I wonder if sharing this with the political centre will inhibit Managers from embarking upon the search for new solutions to capacity, access, or service delivery performance issues. What the centre wants, of course is early-warning of political embarrassments ahead. Do we really want a phonecall to an ICB suggesting that it isn’t a great idea to look at the reconfiguration of maternity services in this marginal constituency?

A further change is that, whereas only a Health Scrutiny Committee could use the power to refer, any organisation or individual can make a request for call-in. That is a much wider power and may be attractive to a broader range of campaigning groups as well as formal bodies like Healthwatch – or even Councils. In fact, I am rather touched by the Guidance’s optimism when stating “DHSC expects requests only to be used in exceptional situations …”  I think the word should have been ‘hopes’. Anyone familiar with the pressures on a Member of Parliament whose constituency is adversely affected by a NHS reconfiguration will fully expect that MPs will be first in the queue to ‘request’ – no, to ‘demand’ the Ministerial call-in.

What the Guidance then anticipates is that a call-in can be refused because NHS commissioning bodies have not taken ‘reasonable steps to try to resolve any issues’. This is the well-established ‘exhaustion of local remedies’ principle, so nothing untoward here. Except that in the bitter rows that can arise on emotive issues like Accident & Emergency, Maternity, or mental health services, who can determine whether the options were properly assessed, whether adequate consultation has taken place, and whether all voices – including seldom heard and diverse communities have been taken into account? No doubt there is a role here for specialist consultancies like STAND, or quality-assurance providers like The Consultation Institute to help resolve disagreements.

Finally, where does all this leave hard-pressed Managers and policy-makers desperate to improve our NHS?

I have just finished reading Zero – the book written by Jeremy Hunt before his unexpected recall to high office and focused on patient safety in the light of his record six years as Health Secretary. He does not specifically tackle service change but is fascinatingly insightful on many aspects of the NHS culture and management challenges. Every page highlights the difficulty of making improvements – but he illustrates that it can be done– but only if things are done properly. He ruefully recalls his dispute with junior hospital doctors (déjà vu!) in 2015 and reflects that many of the problems arose from “inadequate communication”.

I think the same applies to service changes in the health and social care sector. The new arrangements in my view will make life more difficult for those who want to make the changes. They will have to anticipate better; accept the risks that premature or ill-defined ‘notification’ may slow them down; undertake better options development and invest even more in co-production. They will also need take account of wider political acceptability. No longer can they just rely on squaring a Scrutiny committee of known contacts and a few key stakeholders. And they might have to face the rigours of a Whitehall call-in process. This is at a time when too many ICBs have downgraded their public and patient involvement commitment, reduced headcount, and budget.

Some campaigners will rejoice; they do not particularly want change; the status quo is better than the alternatives.

But change there has to be. Read Wes Streeting’s recent pronouncements and be under no illusion that a General Election will remove the threat of widespread and impactful change in the traditional delivery of health – and probably social care. No amount of tinkering with these processes will affect the basic need to face up to the issues society faces if it is to retain the ‘free at point of use’ principles of a National Health Service. Clear guidance helps but is only the start of working out how to proceed…

If you are interested to hear more about the new Guidance, I recommend the Podcast from STAND  

Rhion H Jones LL.B

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