Editor's blog Thursday 20 January 2011: Five things you should really know about the Health and Social Care Bill

Five things you should really know about the proposed Health and Social Care Bill

1. Post-implementation evaluation – the lack thereof
2. The Liberator is not for liberating
3. The estimated £1.4 billion cost of reorganisation is very modest
4. Patient care? Naaah.
5. Consortia are not statutory bodies

1. Post-implementation evaluation – the lack thereof
There is not going to be an overall post-implementation evaluation of the changes to the NHS and social care outlined in the Health and Social Care Bill.

Co-ordinating document – page 36: “because of the dynamic nature of the reforms and the phased approach to implementation, the Government does not believe that an overarching formal evaluation would be appropriate or necessary in this instance. However, in some cases there are particular risks and uncertainties that point towards a greater need for evaluation. For example, there are a number of implementation challenges and risks around moving commissioning responsibilities to GP consortia. Therefore, alongside the increased transparency within the system that will illustrate how well the reforms are meeting their objectives, greater accountability to make clear how well different organisations are performing, and the pathfinder programme to help refine policy direction as the reforms are introduced, there will be a specific evaluation project to examine this in more detail”.

Evaluating the shifting of commissioning responsibilities to consortia is simple: it will happen because PCTs no longer exist. It will be a success because of TINA – there is no alternative.

2. The Liberator is not for liberating
We have often stated that power is about who can hire and fire. It is no less true than ever today.

Regular Health Policy Insight readers already know that we pointed out last month that:

the NHS Commissioning Board can run consortia;

that the Secretary of State For Health is to receive unprecedented powers of direction over all of the NHS, even the bits that won their liberation - FTs;

and that Monitor is not getting suggested freedoms, there will be an independent banking function controlling taxpayers’ equity in the NHS, local councils get more powerful and consortia can flex (if the SoS deigns to let them), and the NHS Commissioning Board will be the new performance-managing centre, with many powers.

This seems to have come as a surprise to some people (who presumably weren’t sufficiently masochistic to wade through the DH response to the White Paper). In the words of the great Kurt Vonnegut, “so it goes”.

However, to discover just how little of a liberator Health Secretary Andrew Lansley aims to be, turn to pages 221-6 of Schedule 1, which state that the National Commissioning Board “is to consist of a chair appointed by the Secretary of State; at least five other members so appointed … a person may not be appointed as chief executive without the consent of the Secretary of State … the Secretary of State may suspend a person from office as a non-executive member if it appears to the SoS that there are or may be grounds to remove (incapacity, misbehaviour, failure to carry out duties) … the Board must pay to its non-executive member such remuneration as the secretary of state may determine … the Secretary of State may by order provide for the appointment of trustees for the Board to hold property on trust …. the Secretary of State may by order provide for the transfer of any trust property from the Board to the trustees”.

This means that when it comes to the ‘independent’ NHS Commissioning Board, the Secretary of State:
- picks the chair and five members
- has veto of the chief executive
- decides NEDs’ pay
- can suspend NEDs
- and can disperse property to them

If we then amble forward to pages 276 onwards, we find that almost exactly the same set of rules applies to Monitor - the Secretary of State:
- picks the chair and five members
- has veto of the chief executive
- decides NEDs’ pay
- can suspend NEDs

‘Liberating The NHS’, eh?

3. The estimated £1.4 billion cost of reorganisation is very modest
Co-ordinating document p. 32, para 116 – “there are significant upfront costs associated with the transition, with an estimated £1.4 bn cost being incurred in 2011/12 and 2012/13 in changing to the new structures”.

Such figures are fascinating, when a quality academic such as Professor Kieran Walshe of the University of Manchester estimated, based on NAO documents, that the cost of deorganisation would be between £2bn and £3 bn..

4. Patient care? Naaah.
You’ve got to love the section on page 33, para 124 of the co-ordinating document which suggest that ”NHS staff may be less focused on patient care during the transition”.

Oh, hang on, no, you really don’t.

5. Consortia are not statutory bodies
This is a big one. This could really kick things off.

On pages 227- 232 in Volume II, the Bill states at 7.1 “a commissioning consortium is a body corporate … not to be regarded as a servant or agent of the Crown or as enjoying any status, privilege or immunity of the crown”.

A body corporate is quite clearly not a statutory body.

For all that it is clear in 9.1 that “a commissioning consortium must have an accountable officer … to be appointed by the board”, it is interesting to see that in 10.1 ”The Secretary of State may by order (more power here)provide for the appointment of trustees for a commissioning consortium to hold property on trust … where trustees have been appointed … the Secretary of State may by order provide for the transfer of any trust property from the consortium to the trustees”.

Moreover, in section 11, the Bill states, ”the powers of a consortium include power to enter into externally financed development agreements … an agreement is an externally financed agreement if it is certified as such in writing by the Secretary of State … if a consortium enters into an externally financed development agreement it may also, in connection with that agreement, enter into an agreement with a person who falls within  … a person (who) proposes to make a loan to or provide any form of finance for another part in connection with the agreement”.

This section even concludes, ”the fact that an agreement made by a consortium has not been certified under this paragraph does not affect its validity”.

Under ‘incidental powers’ in section 15, the Bill says that “the powers conferred on a commissioning consortium … includes in particular power to enter into agreements; acquire and dispose of property; and accept gifts (including property to be held on trust for the purposes of the commissioning consortium”.

The text goes on at section 16 to add, ”transfer orders – the things that may be transferred under a property transfer scheme or a staff transfer scheme under section 141 include
a) property rights and liabilities that could not otherwise be transferred
b) property acquired, and rights and liabilities arising, after the making of the scheme
c) criminal liabilities.

A property transfer scheme or a staff transfer scheme may make supplementary, incidental, transitional and consequential provision and may in particular:
(a) create rights, or impose liabilities, in relation to property or rights transferred;
(b) make provision about the continuing effect of things done by the transferor in respect of anything transferred;
(c) make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to the transferor in respect of anything transferred;
(d) make provision for references to the transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee.

“A property transfer scheme may make provision for the shared ownership or use of property.

“A staff transfer scheme may make provision which is the same or similar to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).

“A property transfer scheme or a staff transfer scheme may provide:
(a) for the scheme to be modified by agreement after it comes into effect, and
(b) for any such modifications to have effect from the date when the original scheme comes into effect”.

Yes, I think there’s enough reasons there to be pretty seriously concerned.