On 11 February, the Department of Health and Social Care published Integration and Innovation: Working Together to Improve Health and Social Care for All, which outlines legislative proposals for a Health and Care Bill.
The white paper follows the work on legislative change by NHS England since the publication of the NHS Long Term Plan in 2019. UNISON has engaged extensively in this agenda, including most recently by responding to the consultation on Integrating Care in January. Following this exercise, NHS England published a series of recommendations to the government and Parliament on how to progress this work.
The planned Health and Care Bill will be the first major NHS legislation in England since Andrew Lansley’s Health and Social Care Act 2012, which UNISON fought a major campaign against. Since then a wide consensus has been established across the NHS – among patient groups, employers, think tanks, unions and others – that the system established by the 2012 Act is not working. Much of the white paper is therefore designed to unravel key aspects of the Act, though the government has sought to add in extra elements on top of those recommended by the NHS itself. The white paper states that the legislative proposals “will begin to be implemented in 2022”.
While most of the proposals relate only to England, there are some elements which also have implications for the devolved nations. For example, the mergers function of the Competition and Markets Authority is UK-wide, some of the arm’s length bodies have a remit beyond England, and plans to reform professional regulation will proceed on a four-country basis.
The briefing below summarises the contents of each of the four main sections of the white paper and then offers analysis from a UNISON point of view.
1. Working together and supporting integration
The white paper outlines plans to better join up service delivery – both within the NHS and between health and social care. It takes forward plans for Integrated Care Systems (ICSs) to be established as formal statutory bodies. England is currently divided into 42 local health economies covered by Sustainability and Transformation Partnerships (STPs), several of which have already evolved into ICSs, with the rest expected to do so by April 2021.
ICSs will in future be made up of an ICS NHS Body and an ICS Health and Care Partnership. The ICS NHS Body will be responsible for the day to day NHS operations of the ICS. As previously proposed by NHS England, CCGs (Clinical Commissioning Groups, a mainstay of the Lansley reforms) will effectively be abolished, as their functions are brought into the ICS NHS Body. The ICS Health and Care Partnership is focused on the wider system and will bring together the NHS, councils and other local players. It will be responsible for developing a plan that addresses the wider health, public health and social care needs of the area. Both the ICS NHS Body and local authorities must take account of this plan when making decisions.
There will also be a new “duty to collaborate” for the NHS and local authorities, and the government will set up a new power to impose capital spending limits on foundation trusts, in line with NHS England’s recommendations. The government will also aim to boost integration through plans to allow for joint committees, joint commissioning and joint appointments between various local players. The white paper has a focus on the importance of “place” and the ability to join up services at local level. There is also a new expectation that the emerging health systems should be “coterminous with local authorities”. Although it was not included in the white paper, the Secretary of State has since confirmed that in future ICSs will be rated by the Care Quality Commission.
2. Reducing bureaucracy
The white paper states that the government will “legislate to clarify the central role of collaboration in driving performance and quality in the system, rather than competition”. In line with the recommendations from NHS England (and UNISON’s own campaigning), the white paper outlines plans to remove many of the most regressive pro-market elements of the 2012 Act. For example, NHS Improvement’s specific competition functions will be removed, along with its general duty to prevent anti-competitive behaviour. The white paper also makes clear that the NHS should be free to make decisions on how it organises itself without the involvement of the Competition and Markets Authority (CMA), so the CMA will lose its roles in reviewing foundation trust mergers and receiving referrals from NHS England on pricing and licensing conditions. This new approach will be reinforced by changes to the tariff system for pricing NHS procedures that governs the way in which money follows patients around the NHS market.
The white paper also confirms plans to change the procurement regime for the NHS. While it makes clear that patient choice will remain a key part of the way services are delivered, the government will repeal the primary and secondary legislation that effectively set up a default assumption that services should be put out to tender (section 75 of the 2012 Act and the 2013 Procurement, Patient Choice and Competition Regulations that stemmed from this). Replacing these regulations – and reflecting the complementary removal of the NHS from the scope of the wider Public Contracts Regulations 2015 – will be a bespoke procurement regime to give NHS commissioners more discretion over when to use competition, rather than being compelled to by the law.
A consultation on proposals for this new NHS Provider Selection Regime has been published alongside the white paper. It outlines the approach that should be taken to selecting a provider in three different sets of circumstances – where existing arrangements are set to continue; where there are new or substantially changed arrangements; where competitive procurement is deemed necessary – and includes a set of key criteria that should be used to help identify the most appropriate provider. It also details changes to, but the continuation of, the existing Any Qualified Provider approach, in which a patient can in some circumstances choose who delivers their care from an accredited list of providers (that can be drawn from outside the public sector).
In line with UNISON’s demands, the white paper also confirms plans to give the Secretary of State powers to create new NHS trusts. This is intended as a way of ensuring that any ICS looking to establish a new organisation to deliver integrated care can do so from within the public sector.
3. Ensuring accountability and enhancing public confidence
Existing plans to fully merge NHS England and NHS Improvement are confirmed in the white paper, but the government has opted to go much further by seeking enhanced powers of direction over NHS England – on the basis that the Covid-19 pandemic has demonstrated the need for this.
This section also outlines new powers to transfer functions between Arm’s Length Bodies, including potentially closing them. The document claims that other than the NHS England / Improvement merger (and ongoing reforms to the public health system) there are currently no other plans to change or transfer functions, though the white paper does propose to remove Local Education Training Boards from statute to give Health Education England “more flexibility to adapt its regional operating model over time.”
In addition, the white paper proposes to give ministers greater power to intervene in local service reconfiguration plans, which will also mean removing the current local authority referral process, as well as an expectation that the existing Independent Reconfiguration Panel is replaced. And there are plans to create a duty for the Secretary of State to publish a document once every five years which will set out roles and responsibilities for workforce planning and supply in England.
4. Additional measures
The much-promised overhaul of the social care system remains conspicuous by its absence, with a series of smaller steps included instead. There are plans to improve data collection to boost the understanding of capacity and risk in the care system (something which the pandemic exposed as lacking). There are plans over time to increase the powers of the Care Quality Commission to assess local authorities’ delivery of their adult social care duties, as well as a new power for the Secretary of State to intervene where it is considered that a local authority is failing to meet these duties. There are plans to allow emergency payments to be made direct to care providers, and to update hospital discharge procedures.
Following previous consultations on the subject, the white paper covers proposed reforms to professional regulation that will be made on a four-country basis across the UK. The government is “aiming to consult on our broader reform proposals, which will be delivered through secondary legislation, shortly.” Proposals include the power to remove a profession from regulation and the power to abolish a regulator, where its regulatory functions have been moved to another organisation or where the professions it covers are removed from regulation. While there are currently no plans to regulate senior NHS managers, the government does intend to clarify the scope of professions who can be regulated, meaning that this could be an option in the future.
There are proposals to make it easier for NHS England to take on certain public health functions, as well as plans to help tackle obesity, including further advertising and food labelling changes. Central government will be given a greater role in the fluoridation of water supplies. Following the publication of the Independent Review of NHS Food in 2020, it is proposed that the Secretary of State will be able to set requirements on national standards for hospital food.
UNISON ANALYSIS
The white paper makes clear that the era of the Lansley NHS is coming to an end.
Many of the worst fears associated with the Health and Social Care Act 2012 have not come to pass. This has been down to a combination of the contradictions built into that legislation, the ability of UNISON and others to resist privatisation locally, and the fact that NHS England signalled its intention to prioritise integration over competition from an early stage of its existence (see, for example, the NHS Five Year Forward View, published in 2014).
However, the 2012 Act still contains the potential to cause more widespread problems for the NHS and has had a damaging impact on the ability of the NHS to function as effectively as it could. More progressive commissioners have often had to jump through a series of legal hoops to avoid putting services out to tender, and the Act has provided legal cover to those commissioners who would always have favoured using competition.
So, the end of this system is to be welcomed and many of the more positive aspects of the white paper align directly with UNISON policy demands that have already been reflected in the legislative change work undertaken by NHS England since 2019. However, while the white paper has the potential to improve the deeply flawed Lansley system we currently have, it is not a silver bullet. Many challenges will remain in resisting privatisation and the government has chosen to complicate matters by adding in a series of other elements to its legislative package.
Competition and markets
The white paper appears to have accepted the contention of UNISON and others that a major cause of bureaucracy in the NHS is the cumbersome and unnecessary market system. As a result, the government will remove those elements of the 2012 Act which established the current system of “economic regulation”, with the role of the Competition and Markets Authority cut right back and NHS Improvement no longer expected to “prevent anti-competitive behaviour”. Some of the language in the white paper reads like it could have been written by UNISON: for example, the desire to “allow the NHS to shift away from an adversarial and transactional system centred on contracting and activity payments to one that is far more collaborative and dedicated to tackling shared problems.” It is just unfortunate that it has taken ten years for the government to finally arrive at this realisation – a wasted decade of the NHS having to work around the legislation to get things done.
Previous work by NHS England had suggested that a more integrated NHS could ultimately mean an end to the divide between commissioners and providers of care – the so-called “purchaser-provider split” on which the NHS market has been based for 30 years. While the government states that it will “retain a division of responsibility between strategic planning and funding decisions on the one hand, and care delivery on the other”, there are also plans to allow ICSs (that will take on CCG commissioning functions) to “delegate significantly to place level and to provider collaboratives”. And it is unclear how a separation of functions will be achieved when local providers will also be board members of the ICS NHS Body.
Procurement and provider selection
Of more immediate importance, there is confirmation that the section 75 regulations governing NHS procurement will be abolished, meaning that commissioners will no longer be operating under a default assumption of using competition to arrange services and will instead have greater discretion about whether to do so or not. However, the white paper is clear that patient choice will remain – while acknowledging the “health inequalities currently experienced in the area of choice” – and it anticipates that “there will continue to be an important role for voluntary and independent sector providers.” The proposals for the new provider selection regime lay out a new procurement regime for the NHS. UNISON will respond to the consultation on these proposals, which contain several positive elements and some that are less welcome.
On the plus side, “rather than forcing the NHS into pointless tendering and competition”, the new regime will make it easier for commissioners to continue with existing service provision where this is working well (NHS bodies continue to make up the vast bulk of incumbent providers). Contracts could also now be awarded for new services (or where arrangements are set to change substantially) without the need for tendering, which should generally benefit NHS providers as well (notwithstanding the cronyism that has characterised government contract awards during the pandemic). Furthermore, the key criteria listed to help decision-makers determine the appropriate provider include “integration and collaboration” and “service sustainability and social value”. It remains to be seen how strong these considerations will be in practice (particularly when they come up against other criteria focused more clearly on cost and choice), but they do provide several concrete arguments for commissioners to justify keeping services within the public sector. In this respect, the proposals are potentially an improvement on the initial NHS England plans, which suggested the use of a “best value” regime that UNISON and others argued against, suggesting that “public value” or “social value” tests should be used instead. The detailed description of “service sustainability and social value” includes a welcome acknowledgement of the need for commissioners to consider the impact on the workforce in their decisions. There is also a proposal to ensure that the arrangement of “healthcare services by public bodies for the purpose of the health service” is not included within the scope of trade deals made in future by the UK – a response to fears that American companies could benefit from such at the expense of the NHS.
On the downside, the proposed regime reaffirms that commissioners will continue to be able to use the private sector to deliver services, and the Any Qualified Provider (AQP) system remains in place. The proposed regime does not go as far as the pre-2012 system in which the NHS was to be considered the “preferred provider” when it came to the award of contracts. It is possible that by strengthening the place of incumbent providers in the new system it will be harder to bring some privatised services back in-house, and the proposed new regime will not apply to non-clinical services, meaning that areas of importance for UNISON members such as cleaning and catering would not benefit from the more progressive approach outlined above. The potential for legal challenge from private providers (or any providers) remains, though this would now have to be done via judicial review, given the plans elsewhere to remove the NHS from the Public Contract Regulations and to remove NHS Improvement’s competition enforcement role.
ICSs and integration
The prospect of more joined up services and better integration between different parts of the health and care system is hard to argue with, and the latest plan feels like a more genuine attempt to bring about meaningful integration than many of its recent predecessors. There are likely to be a number of similarities between ICSs and the structural attempts to promote integration elsewhere the UK, however there does not appear to be any suggestion that England will look to understand the reasons why such initiatives have succeeded or failed in the devolved nations. Nor is there much in the white paper to show that lessons have been learned from the many previous attempts at bringing the NHS and local government together in England – attempts that have generally led to very little concrete progress. Substantial hurdles still need to be overcome, such as the different cultures, funding models and accountability arrangements between the two sectors. Moreover, the perilous funding situation of local councils risks lessening the ability of the various bodies to operate together effectively, not just on social care (discussed below) but also on public health measures. Unless these problems are tackled, integration seems likely to remain a minority pursuit.
The proposals do give local government a more obvious role in ICSs, the importance of Health and Wellbeing Boards is reasserted, and the white paper stresses the flexibility for each system to decide exactly how it will operate. However, such localism is tempered by the reinstatement of central government powers over the NHS (see below) and new powers to direct NHS England to take on public health functions currently undertaken by local authorities.
Having two ICS boards may produce confusion, certainly for local people wanting to know who is taking the key decisions in their area. And the fact there will be two separate parts of an ICS in operation may in itself work against the desire for better joined-up service delivery. Contrary to an earlier leak of the white paper, the final version restates the autonomy of foundation trusts within the new system and the ICS NHS Body will not have the power to direct providers, so it seems highly likely that, for better or worse, the real power in new health systems will remain with the biggest local NHS providers. The proposed “duty to collaborate” would need to be very robust to counter the existing financial incentives of foundation trusts.
The desire for coterminosity between ICS and local authority boundaries is something that, on the face of it, makes a lot of sense if there is to be true joined up working between local NHS and council services. But ICSs are already operating in nascent form with no such requirement, meaning that as many as 18 may have to undergo further geographical realignment to conform to this latest requirement. The picture is further complicated when CCGs are taken into account: the aim is to have only one CCG per ICS, but by April 2021 there will still be 106 CCGs (even after the latest range of mergers), meaning that much further consolidation will be required in the next year or two, depending on the exact timetable for reorganisation.
The white paper includes confirmation of a positive move that UNISON had called for with proposals for the government to have the ability to establish new trusts, a way of ensuring that any ICS wishing to establish a new body to deliver its integrated care can now do so from the public sector (a small number have already considered setting up a so-called “Integrated Care Provider”). However, there are still ways in which the private sector could play a role in the way ICSs operate. There is nothing ruling out companies being part of the joint committees that can be established between ICSs and NHS providers. More explicitly, “independent sector partners” are included in the list of organisations who could be members of the new ICS Health and Care Partnerships. This creates the possibility of a company bidding for contracts from an ICS where it is also part of that ICS’s Health and Care Partnership.
Accountability issues
The area where the white paper most diverges from NHS England’s previous proposals for legislative reform – and the area that has so far attracted most controversy – is the government’s plan to take back some of the power currently exercised by NHS England. The Secretary of State would also be able to transfer functions easily between the arm’s length bodies – or even abolish them entirely – without the use of primary legislation. And ministers proposing to give themselves greater powers to intervene in decisions about changes to local NHS services sits uncomfortably within a reform package that claims to be about giving local leaders greater freedom to make decisions.
In common with many others, UNISON opposed the plan to set up an arm’s length NHS commissioning board (which ultimately became NHS England) which was part of the 2012 legislation. The latest plans would bring accountability for the NHS more clearly back to the Secretary of State and, by extension, Parliament. However, with a Conservative government having been in power for every year since 2012, there is an argument that the operational independence of NHS England has been an important factor in ensuring that successive Tory administrations have felt either unable or unwilling to bring about further major reform that could have endangered the future of the NHS. It is also notable that during the pandemic the areas over which the government has had direct control – such as Test & Trace and PPE supply – have been marked by major failings, particularly when compared with the vaccine rollout that NHS England has taken charge of. Moreover, there is a risk that contentious reform in this area serves to distract Parliamentarians from the task of removing the worst aspects of the current competition regime, on which there is much greater consensus.
Enshrining ICSs in legislation may head off some of the problems that unions and campaigners experienced with the development of STPs. Regardless of whether they were aiming to bring about reasonable changes or not, the perception persisted that STPs were operating without proper accountability to national government (due to the fact they did not exist in legislation) or to local government (due to the minimal role that councils were able to play in most STPs).
Organisational change
Any reform agenda of this size is bound to cause disruption and there will be few in the NHS looking forward to another round of reorganisation, even if the ultimate endpoint makes more sense than the current system. Further to NHS England’s recent consultation on Integrated Care, however, the white paper and associated documents suggest a more sensible approach this time around. The white paper includes a recognition that “we need to support staff during organisational change by minimising uncertainty and limiting employment changes”. As a result, the government will attempt “to provide stability of employment and will work with NHSE and staff representatives to manage this process”.
An accompanying letter from NHS England’s chief operating officer confirms an intention to introduce an “employment commitment” for staff (below board level) affected by the legislative proposals. The scope goes further than CCG staff, which was the limit of previous plans, and would now cover anyone working in the “wider health and care system” of CCGs, NHS England, NHS Improvement and NHS providers.
A Frequently Asked Questions document adds detail, stating that the commitment will cover “continuity of terms and conditions (even if not required by law)”. There is also an acknowledgement of the need to avoid distracting staff from their “day job”, with the aim being to “promote best practice in engaging, consulting and supporting the workforce during a carefully planned transition, minimising disruption to staff”. By April 2021 there will be a set of HR principles developed nationally to support the transition to the new system.
UNISON has already pointed out to NHS England that for such protections to provide the reassurance that is intended, they would need to be in place for a meaningful length of time after transfers or other employment changes take place.
Social care
It may have been fanciful to think that the desperately needed overhaul of the social care system would ever be included in such a document, but by describing it as a “health and care” white paper the government has again raised expectations only to dash them immediately; it is essentially an NHS document with social care merely an add-on.
The lack of vastly improved funding and meaningful reform for the sector – this will apparently take place at some unspecified time later in 2021 – not only affects those working in and receiving social care, but it also places a major question mark against the central plans of the white paper to bring about greater integration. It is impossible to expect integration between health and social care to be a success when one half of the partnership continues to operate in crisis mode, without even a potential route map to a more sustainable future.
There are some more incremental steps that are welcome. The pandemic has brutally exposed the government’s inability to keep a handle on the state of local care provision, so improving systems for data collection is much needed. UNISON has also repeatedly called for the Care Quality Commission to be given powers to scrutinise local authority commissioning of social care in addition to their existing duty to assess providers’ delivery of care. However, such a move would need to be accompanied by increased funding for councils and by ensuring that the CQC had the capacity to carry out this additional function.
Other issues
In other areas of significance to UNISON, the decision to impose capital spending limits on foundation trusts removes one aspect of the two-tierism that exists between trusts and foundation trusts. However, there is nothing to reverse the measures in the 2012 Act that permitted foundation trusts to earn up to half of their income from private patients. The proposals to bring about national standards for hospital food are consistent with the aims of UNISON’s “Better Hospital Food” campaign, though extra funding will also be needed. Less positively, the plans to reform professional regulation explicitly refer to the “financial and efficiency savings” to be found in reducing the number of regulators, and suggesting that some professions could be removed from regulation is bound to stoke fears about deregulation (despite the insistence in the white paper to the contrary).
There is little generally on workforce and certainly nothing to tackle the worrying shortages that have opened up in recent years. Perhaps this was never likely to feature in a white paper largely concerned with addressing the structural mistakes of the past, but with 2020’s NHS People Plan amounting to a relatively short-term set of laudable aspirations, it does again highlight the lack of a fully-funded comprehensive workforce strategy for the NHS – and any sort of workforce plan for social care.
Beyond this, there will be differences of opinion about whether the need to provide stability as we come out of a pandemic is more important than the need to overhaul a health and care system that was hamstrung in its ability to provide the joined-up decision-making that could have aided our response to that pandemic. And to put things into perspective, on the very day the white paper was published, it was revealed that a quarter of a million patients are now waiting a year for their treatment.
As ever, none of the government’s proposals will produce the desired outcomes unless extra money is found. Social care remains chronically underfunded and the 2010s were in real terms the most miserly funding decade since the inception of the NHS, which will now be expected to deal with the massive backlog of procedures that has built up – all with a depleted, exhausted workforce that has just worked through the most harrowing year imaginable.
NEXT STEPS
The government is not seeking formal submissions to the white paper, but UNISON will respond to the House of Commons Health and Social Care Select Committee inquiry on the subject before the 23 March deadline and also to the consultation on the Provider Selection Regime (mentioned above) before the 7 April deadline.
The union will then prepare political briefings once the actual Health and Care Bill appears in Parliament. The draft Bill will need to be scrutinised in detail once it is published.
In line with the analysis above, our response to the Select Committee inquiry will include the following key points:
• Welcoming the end of many of the most damaging Lansley reforms, particularly the fact that NHS Improvement would no longer be required to “prevent anti-competitive behaviour” along with a much-reduced role for the Competition and Markets Authority;
• But highlighting that the government has chosen to complicate matters by adding a series of other elements to its proposed legislative package.
• Welcoming the end of the Section 75 procurement regime with its default assumption of competitive tendering for NHS services;
• But pushing for the proposed provider selection regime to go further in defending the NHS from damaging competition.
• Welcoming the general intention to improve integration between services;
• But highlighting a number of weaknesses in the approach, such as the apparent failure to learn the lessons from previous initiatives in England or the experience in the devolved nations;
• Welcoming the proposal to allow for new NHS trusts to be set up as a way of ensuring that any future Integrated Care Providers can be established from within the public sector rather than looking to use private operators;
• But expressing serious concern about the potential for companies to play a role in the new ICS Health and Care Partnerships.
• Highlighting the failure yet again to produce meaningful major reform for social care;
• And pointing out that none of the government’s plans will produce the desired outcomes unless extra money is found.
Likewise, our response to the Provider Selection Regime consultation will focus on the following key areas:
• Welcoming the end of the Section 75 procurement regime with its default assumption of competitive tendering for NHS services.
• Welcoming the fact that commissioners will no longer need to use competition if they decide to continue with an existing service or in arranging for the delivery of a new service (both of which are likely to benefit NHS providers);
• But highlighting the need for strong transparency arrangements to avoid the cronyism we have seen during the pandemic in which the government has handed out contracts to private operators with no scrutiny whatsoever.
• Suggesting that the system should go further and instate the NHS as the default provider (inverting the current system in which the assumption is that services should be tendered).
• Welcoming the use of criteria such as “integration and collaboration” and “service sustainability and social value” in the way commissioners decide who to award contracts to;
• But suggesting that there should be a hierarchy which places these more progressive considerations above those that are more narrowly focused on cost.
• Welcoming the need for the impact on the workforce to be a consideration for decision-making bodies;
• But suggesting that this should be more explicit in stating that contracts can only be awarded to organisations that pay their staff in line with national agreements and that no two-tier workforce situations should arise as a result of provider selection.
• Welcoming the proposed exclusion of healthcare services from any future trade deals;
• But lamenting the continuation of the Any Qualified Provider regime.
For further information or to offer comments please contact Guy Collis at g.collis@unison.co.uk.
UNISON Policy Unit, March 2021