Clause 38 - Reconfiguration of services: intervention powers

Part of Health and Care Bill – in a Public Bill Committee at 2:45 pm on 21st September 2021.

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Photo of Justin Madders Justin Madders Shadow Minister (Health and Social Care) 2:45 pm, 21st September 2021

I congratulate the Minister on his valiant attempts to defend the powers that he wishes the clause and schedule 6 to give his boss.

The Opposition are pretty realistic and do not think that the clause will survive the parliamentary process in its current form. It would save a lot of time if the Minister was to indicate now that he had taken note of the many concerns expressed and that things will change. However, as the clause remains on the face of the Bill, we will have to go through the long and important reasons why it will not be able to stand in its existing form. The Minister will continue to defend the indefensible until it no longer needs to be defended.

We have heard evidence as to why the powers in the clause are not needed and, indeed, why the Secretary of State would not want such powers. Again, we are trying to help the Minister and his Department out by pointing out some of the pitfalls. The clause really is the total antithesis of everything this Bill is supposed to be. The Minister has told us many times that he wants to take a permissive approach, but the truth, as exposed by this clause, is that being permissive is okay until it is not, and then we have the power grab, the micromanagement and the sound of bedpans dropping all the way up to the Secretary of State’s desk. That is the logical conclusion of the clause.

I refer the Committee to some of the witnesses who spoke in the evidence sessions. The NHS Confederation chief executive, Matthew Taylor, has said:

“There is widespread support for most aspects of the government’s NHS reforms, but the one area we continue to get real concern over is the proposal to extend ministerial control over changes to local services…the risk with this element of the Bill is that we will end up with more politically motivated decisions which erode the NHS’ clinical independence.”

And in his evidence session, he said:

“We think the system, as it is, is not perfect but works pretty well. For the Secretary of State potentially to be embroiled in making decisions not just about major reconfigurations, but really relatively minor reconfigurations runs the risk not only of delaying necessary changes in the system, but of putting less emphasis on the views of local people and of clinical advice.”—[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 44, Q56.]

He went on to say that

“the powers of reconfiguration are the Achilles heel. I appeal to you to recognise that that is unnecessary and goes against the spirit of the Bill.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 52, Q65.]

We certainly agree with that, although we would say that there is more than one Achilles heel in the Bill. I do not know how many heels there can be in one Bill, but there is certainly more than one.

Saffron Cordery of NHS Providers said:

“The other thing to say is that, often, Secretary of State powers may seem like small elements, but taken together, the cumulative impact can be seen to erode that local accountability. We would hope, whatever happens, that if someone has an issue with ear wax removal, they speak to someone at the most appropriate level to get something done. That is what subsidiarity is about: the delegation of powers to the most appropriate level, and it is really important. It is also important for accountability, because you cannot have a Secretary of State saddled with taking a thousand tiny decisions in an organisation and a system as complex as the NHS. That is one of the challenges of this local reconfiguration issue that is arising.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 44, Q56.]

Chaand Nagpaul of the BMA said:

“The other concern is about the local reconfigurations. We know how politically sensitive these things can be. We would not want the Secretary of State to have disproportionate powers in those arrangements, which will often be more susceptible to political influence.” ––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 96, Q128.]

There is a pretty clear consensus of concern. It is little wonder, given that clause 38 and the accompanying schedule, as currently worded, would require that if any NHS commissioning body, NHS trust or foundation trust is aware of circumstances that it thinks are likely to result in the need for the reconfiguration of NHS services, it must notify the Secretary of State. That is quite the bar to set. What does it actually mean in practice? If a GP mentions in passing to someone who works in the ICB that they are thinking of extending their surgery’s opening hours one evening but shortening them on another because their bridge club has changed the day its meets, would that count as an event that must be notified to the Secretary of State? If a physio decides that they want to play soothing music and have an incense candle burning during their sessions because it would put patients more at ease, would that count as a notifiable event?

Those might sound like absurd examples, but the way the schedule is currently worded potentially casts the net that widely. Indeed, paragraph 1(a) refers to a reconfiguration as including

“the manner in which a service is delivered”.

The dictionary definition of “manner” is

“the way in which a thing is done or happens”.

I am struggling to think of something that could be broader in its terminology. I am not sure how helpful it would be for the Minister to reel off a long list of what is and is not meant to be included in the schedule, but he is more than welcome to try. Of course, he could save a lot of time by deleting the clause altogether.

One of the reasons the Minister gave earlier for not supporting our amendment on safe staffing levels is that he does not want to impinge on local accountability, but here we are doing the exact opposite. What is troubling people about paragraph 3 in particular of the schedule is that, in effect, it places a positive duty on an NHS commissioning body, be it a trust or a foundation trust, to notify the Secretary of State if it is

“aware of circumstances that it thinks are likely to result in a need for the reconfiguration of NHS services”.

Where exactly do we draw the line with that? If Doris in accounts overhears a conversation, does that mean that the NHS body is aware? Any light that the Minister can shed on that would be most welcome. It highlights how the clause, as worded, creates unrealistic obligations. How would any of this be enforced? Can we punish a trust for failing to be aware of a need, even if it is just Doris in accounts who has heard a conversation from someone else in passing about a possible change? Can an ICP that holds a needs assessment point the finger? Are there any people who are punished if they spot the need, but do not tell the Secretary of State, or if they are aware of a need, or should have been, and do not say anything? Will they also be caught by the provisions of the schedule?

What are the sanctions against an NHS commissioning body, trust or foundation trust if they fail to notify? What is the punishment? What is the lever that will compel them to notify the Secretary of State? Presumably, if our amendments on openness and transparency had gone through, the Secretary of State would not have needed to worry himself about such questions, because he would have been able to read all the board papers and minutes of all the ICBs as they met. Hopefully, those papers would set out any changes that were being considered instead of indulging in this fairly ludicrous guessing game.

The reality, surely, is that the commissioners and providers are considering how to improve things pretty much all the time. Is that not part of their drive for continuous improvement? Are they going to have to keep sending updated memos to the Secretary of State every time a plan is considered again? Not only is the potential scope of the proposed duty extremely wide, but it is not exactly in keeping with localism and place-based approaches. In fact, it is totally contrary to it. How will the Minister justify taking away powers from a local authority to challenge reconfigurations, and yet the Secretary of State, hundreds of miles away, who has probably never visited the place, gets the ability to challenge absolutely everything?

So far, concern about service changes has not led to the proper recognition of staff in the process. The pledge in the NHS constitution to which the Minister referred is not always followed, particularly in relation to the duty to involve staff. That should be included in the Bill if the Government are serious about that.

We should not be surprised that the clause, in particular, is causing so much concern, because people really value what they regard as their services, and they are wary of change and interference from the centre. That should come as no surprise after a decade of cuts and service restrictions. They are right to be cautious and concerned about what is behind that approach. This is the Government who of course claimed that the refurbishment of a wing is the opening of a brand-new hospital. Is it little wonder, in the face of such spin, that people are concerned about what is behind all this?

We know that the NHS keeps adapting and reconfiguring. Any organisation that is serious about improvement will never just accept the status quo. I am sure that the Minister would accept that it is quite a difficult conversation to have when it is proposed to close an unsafe A&E unit, even when that is supported by strong clinical evidence. We know that in such circumstances, tensions are bound to surface. That tension was indeed recognised 20 years ago, when the first reconfiguration process was put in place. It had, I believe, 13 steps in it—unlucky for some —and it required a comprehensive business case, a proper consultation and an independent assessment both from the gateway review and by the then national clinical advisory team. The old strategic health authorities policed them, and made sure that the course was set. To be fair, as with much of the NHS, the process was not always followed properly, but it largely worked and there were beneficial changes as a result.

As Saffron Cordery of NHS Providers said in her evidence to this Committee:

“The powers that are currently in place are a really effective way of doing it. People getting something past a local health overview and scrutiny committee is a really important hurdle for any service change. It is already well respected, well used and very effective. This is one of those elements that at best is redundant and at worst is going to create a lot of work and a lot of unnecessary tension and friction where we already have challenge.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 52, Q65.]

Nigel Edwards from the Nuffield Trust gave evidence and also hit the nail on the head when he said:

“The current system seems to me to work quite well. The Secretary of State still has a say, particularly around controversial decisions, but they do not get sucked into every small reconfiguration and change. You also do not have a point where there is an opportunity for local participants to say, ‘I’m not going to contribute to this conversation any more. I’m going straight to the top,’ and undermine people working together locally. I am of the view that the current system works quite well.”

That evidence in particular points very well to the risks of this proposal. It could undermine the whole thrust of the Bill, which we understood was to be about greater local autonomy and collaborative working. Nigel Edwards also said in his evidence:

“I think we said to the previous Secretary of State, ‘You need to be really careful what you wish for. You may think that your intervention is going to help to move things along and improve innovation. It’s quite likely, from both previous experience and experience in other similar types of systems, to have the opposite effect.’”––[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 120, Q161.]

Perhaps the Minister does not need to listen to the evidence that has already been presented to the Committee to be convinced of the concerns, because it seems that his Department’s own impact assessment has also identified them. I will quote from that. It says:

“The existing local authority-led referral system would likely be replaced by much broader and more active lobbying groups; to ensure equitable reviews, the department would need new administrative processes to provide adequate support to ministers (including clinical expertise) and new data flows allowing adequate scrutiny of complex reconfiguration cases prior to call-in”.

Perhaps he could redeploy some of the people who are not dealing with the foundation trust applications to do that, but there would be a burden on the Department.

The assessment also says that

“the ability to call-in any reconfiguration could lead to…departmental administrative costs” for systems to monitor and inform Ministers about reconfigurations. It says:

“This would be necessary to ensure the Secretary of State has appropriate information across reconfigurations to be able to call them in. This could be a particularly significant cost if cases monitored for call-in extended much beyond the remit of complex reconfigurations…and if duplication with data flows to other bodies…could not be avoided.”

The Minister will see that I am trying to be helpful to him and his Department at this point. There is one other point from the impact assessment that is really pertinent. It says that

“any benefits of greater autonomy” for NHS organisations

“may be forgone.”

That really is going to the heart of one of the difficulties that we have here.

That is a clear warning for the Minister from his own officials. Hopefully he will listen to them if he does not listen to us. We need to understand and I have not really heard—with the greatest respect to the Minister—what the problem is that they are trying to fix with this particular clause. It is always the case that in the end decisions are made by the Secretary of State. The innovation to allow the Independent Reconfiguration Panel to advise the Secretary of State has worked well. Indeed, the Minister himself recognised its role. Something like 100 proposals have come through the panel in its lifetime, and as far as we know, the Secretary of State has never actually taken the steps to overturn them. Indeed, their importance has been recognised today. It was not a surprise, therefore, that the original proposal to scrap the panel altogether was dropped.

Given that we have, possibly, 100 examples, some of which the Minister will be acquainted with more intimately than us, could he tell us which ones under the old system would have been leading to different outcomes from what we are getting proposed in the Bill? What would have been different? What decisions would have been different? Would it have been the speed of them? Perhaps it will be slower, actually. That is one of the risks. What is it that has happened in the past that would not be repeated under this clause?

To take the Committee back to July 2010, a former Health Secretary, Andrew Lansley, made some changes to the panel. He introduced elements of independent scrutiny. The national clinical advisory team and the gateway were no longer required. Four tests came in instead. Obviously, we politicians do love our four tests. I think that normally Labour goes for five tests. But we have four on this occasion. They were really a fig leaf to pretend that something had been done. The process was overseen by NHS England. The four tests were set out in the operating framework, and they required proposals to demonstrate support from GP commissioners, strengthen public and patient engagement, clarity on the clinical evidence base and a consistency with current and prospective patient choice. Anyway, the process carried on, and pretty much worked okay, unlike what we think we are going to see coming through under the Bill.