Two themes that have run through my blogs over many years have been: (i) the Tories have long been intent on killing off the NHS and bringing in private providers, and (ii) Lansley’s wordy and often misunderstood Health and Social Care Act of 2012 opened the door for later moves to this end.
COVID provided cover for several privatisation initiatives, many of which have been exposed and documented by a handful of ‘muckraking journalists’ and taken to the courts by the Good Law Project. But this blog focuses on the shiny new Health and Social Care Act of 2022. Covering rhetoric apart, what does this iniquitous piece of legislation enable?
The British Medical Association (BMA) has summarised the principal changes in the Act in the following terms.
The Act removes existing competition rules and formalises Integrated Care Systems (ICSs) as commissioners of local NHS services. It also grants the health secretary authority over the health service.
More specifically, the two component parts of an ICS – the Integrated Care Board (ICB) and the Integrated Care Partnership (ICP) – will have statutory status and will collectively hold the ICS’s legal powers and responsibilities. ICBs will be responsible for the NHS functions of an ICS, while ICPs will oversee their wider public and population health work. What does this mean? It means that Clinical Commissioning Groups will be absorbed into their local ICSs; and their commissioning powers and most of their staff will become part of the ICS body. This will halt enforced competition (which has been criticised as overly bureaucratic and fragmenting of services). Section 75 of the Health and Social Care Act will be repealed and replaced with a new system, the Provider Selection Regime (which will give NHS bodies a wider range of options when commissioning services).
The powers of the secretary of state will be increased: to direct the NHS, create new NHS trusts, intervene in local service reconfiguration, and amend or abolish arm’s length bodies. S/he will have to publish a five-yearly report on workforce planning.
The Act also introduces a new £86,000 cap on the amount anyone in England will need to spend on their personal care over their lifetime. Only personal contributions to the cost of care will count towards the cap. Means-tested payments made by the local authority will not be counted.
The BMA has rightly expressed its concern (although I have to record standing outside the BMA with megaphone in hand trying to make the case for strangling the 2012 Act at birth and failing). The BMS’s concerns and demands regarding the 2022 Act are summarised as follows:
- Increasing government accountability for ensuring the health and care system has adequate numbers of staff to meet patient need, now and into the future, by requiring the secretary of state to produce accurate and transparent workforce assessments to directly inform recruitment needs.
- Placing clinical leadership at the heart of the new Health and Social Care System by embedding clinical leadership and patient representation at every level of ICSs, including formalised roles for local medical committees, local negotiating committees and public health doctors.
- Establishing the NHS as the default option for providing NHS contracts to truly protect the NHS from costly procurement and fragmentation of services.
- Ruling out private providers wielding influence over commissioning decisions by sitting as members of NHS decision-making bodies.
- Ensuring safeguards and limitations over the secretary of state’s powers within the Bill to avoid unnecessary political influence in NHS decision-making.
While the BMA reported some minor successes, their document noted, unsurprisingly, that ‘the government ultimately failed to act on the concerns of frontline staff to address the main problems facing the NHS and our members: too few resources and, crucially, a huge shortfall of staff.
The BMA, I think, have half of the story. They are after all tasked first and foremost with representing their members’ interests. Others have developed more worrying critiques.
The NHS in England is being organised into 42 ICSs which are only partially or minimally statutory. Within each ICS the ICB will have a statutory footing and be responsible for commissioning most health services in the area they cover. They will be able to delegate their own functions to provider collaboratives, including budget decisions. According to many acute trust chiefs, it is provider collaboratives and groups, and not ICBs, that will wield the greatest influence; and these provider collaboratives are not directly accountable to the public or to the government.
Three additional entities are set to be increasingly involved in healthcare in England: place-based partnerships; primary care networks; and the ‘health system support framework’. The latter is an accredited list of suppliers to the NHS that includes IT companies, consultancy firms and private health providers.
One powerful critique that emerges from these various changes runs as follows. Once the old system of CCGs is replaced with ICBs, it is up to NHS England, not parliament, to decide who each ICB will be responsible for. Without clarification, it has been argued that ICBs might be able to challenge allocations and thereby in effect to select patients. New groups of people could be excluded from NHS care, as certain migrant people currently are.
The 2012 Act contained a clause that if an individual needed emergency treatment when outside their CCG area – perhaps while on holiday in a different part of the country – then they could access that treatment. No such clause is included in the 2022 Act. This could mean that an ICB will not be required to arrange provision of emergency services for a person outside its responsibility, but who happened to get ill or injured in the wrong place at the wrong time.
Critics like Alex Scott-Samuel think the new Act, following many years of NHS underfunding and then COVID, will lead to ‘more rationing, and care will be a postcode lottery. It will become much harder to see a GP. The NHS will become a kitemark for private providers. These providers will get taxpayer money to deliver procedures, and then that taxpayer money goes to their shareholders, instead of being reinvested in the NHS.’
I’m with Alex. I opposed the 2012 Bill, which opened the way for the 2022 Bill. My trust in the government is zero. After all, they’ve consistently expressed the political ambition to undermine and replace the NHS with an alternative far more oriented to private or for-profit providers. They are for regression in healthcare, against progression. We are losing our NHS, which is becoming a mere brand name. The 2022 Act will open the door further. Check who owns ‘your’ local GP practice. It could well be an American private equity company based in a tax haven!