Clause 38 - Reconfiguration of services: intervention powers

Part of Health and Care Bill – in a Public Bill Committee at 3:15 pm on 21st September 2021.

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Incidentally, in the same HSJ article a DHSC spokesman was quoted as saying that these proposals would give the NHS more power, not less, and that they would maintain its clinical and operational independence while ensuring that the Secretary of State had appropriate and transparent oversight. As those remarks are quoted in a written article, we do not know whether the spokesperson who made them did so with a straight face. Indeed, it would be most interesting to see if the Minister is able to repeat those comments when he has taken his mask off without at least cracking a smile about what the spokesperson said. I think that that statement does rank up there with some of the stuff we have seen in his playbook about how new clinics, however small, should be called new hospitals. I am half expecting the Minister to wave a pen and paper about and proclaim the introduction of a brand new booking system that is being rolled out across the NHS, such is some of the spin that the Department is producing these days.

Finally, I would like to address a few of the other powers in schedule 6 that deserve greater explanation. Paragraph 4(3)(b) gives the Secretary of State

“power to decide particular results to be achieved by the NHS commissioning body in taking decisions in relation to the proposal”.

I hope the Minister can help me here, because that sounds pretty much as if the Secretary of State would be issuing an instruction that could override any local processes, decisions or consultation by deciding the particular result that he wants to achieve. Is that actually what he is going to do—basically mandate a particular decision? The power for the Secretary of State to direct any commissioning body to consider a reconfiguration is another extremely broad and undefined power; in the context of the rest of the schedule, it amounts to an absolute power. As we have heard in evidence, this could override patient safety concerns, local consultations and agreements, and clinical opinion. It is an absolute power, and it should be voted down.

Even in the very few cases where there might just be a role for the Secretary of State to break the deadlock, as with the reconfiguration of paediatric heart surgery, there is already enough in place in the system, which most people think works reasonably well. Nick Timmins of the King’s Fund said:

“I think it is really dangerous for both Ministers and the NHS…the Independent Reconfiguration Panel…has worked very well. It has dealt with about 80 controversial cases…the Secretary of State does not have to take its advice, but the Secretary of State almost invariably does take its advice. I think that if we end up with lots and lots of reconfigurations hitting Ministers’ desks, Ministers will come to regret that. If you listen to the views of previous Secretaries of State, they almost always say, ‘It’s ludicrous we ended up having to make a decision about what was going to happen’—in Nether Wallop or wherever—which was the case before the Independent Reconfiguration Panel was around.”––[Official Report, Health and Care Bill Public Bill Committee, Thursday 9 September 2021; c. 120, Q161.]

I hope that the Minister will recognise that we are trying to help him. I do not think that he wants to end up giving his Department and his boss so much power, because it will turn out to be a poisoned chalice, and contradicts the stated aims of the Bill.

There are a couple of questions that we would like the Minister to answer. How will he ensure that configurations are to the benefit of patients and can take place within a reasonable timescale, given that he may well be the subject of individual lobbying? How will he ensure that decisions taken under paragraph 4(2)(b) of schedule 6 are appropriate for, and acceptable to, patients and the public? What measures will he put in place to ensure that things are dealt with expeditiously and do not drag on for many years, undermining clinical leadership in local areas? Will he publish a review each year of the impact and effectiveness of the powers that he is giving himself under the clause? As I stand here now, I am still not clear why he wants to give himself those new powers. Hopefully he will reflect on those matters. We have a lot of respect for him, and we are trying to be as helpful as possible, but we do not support clause 38.