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Does the NHS need a new law?

As new care models in the NHS take shape, the role of commissioners and providers are becoming increasingly intertwined. Our senior associate and NHS legislation expert Sharon Lamb examines whether the existing laws that govern the NHS are fit for purpose.

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Published: 01/06/2016

One of the great ironies of the storm over the 2012 Health and Social Care Act was that many of the reforms could have been achieved with quiet nips and tucks to existing structures – rather than the political and legal upheaval of a massive piece of legislation. The experience has left the current government understandably keen to avoid spending any more parliamentary time on NHS legislative change.

But that creates the risk of a lesson learnt too well. What if just as politicians have sworn off law-making in the NHS, we are nearing the point where legislative change is actually needed to keep pace with the changes moving through the service? 

From the Lansley act to the foundation trust model established under New Labour, the current NHS structure was based on the ideology that competitive tension between autonomous bodies would lead to an efficient market place. 

Commissioners had to be separate from providers, exerting consumer choice and power on behalf of patients. This structure was also rooted in times of plenty, with enough funding to incentivise and reward those who succeeded and grew. 

But the reality was that market rules were not embraced and financial pressures bit harder than ever expected. Lean times have brought an entirely different focus. All attention is now on collective action, with providers and commissioners working together to deliver to an overall budget. The footprints are led some times by commissioners, sometimes by providers: the lines can seem blurred. At times it can seem that ideologies become confused – are we working in a market economy or are we moving to a centralist model focusing on collaboration?

Can our existing laws cope with this change? Some big issues crop up: 

  • Will a ‘one system’ approach mean that the split between commissioner and provider collapses?
  • Legislation sets the rights for patients to choose their care provider when they are referred through the system. But how does this work as providers of NHS care merge to form bodies based on the idea of accountable care organisations, whose guiding principle is taking responsibility for every stage of a patient’s care?
  • These new models seem difficult to reconcile with the ideal of choice by commissioners as well. When they bring together so many local services into a single unit, how does this fit with the legal requirement in many cases to advertise and run a process of open, competitive procurement for each service commissioned?
  • What role will the independent sector play in the sustainable transformation plans?
  • Is the concept of sovereign NHS bodies still sustainable as central bodies, up to the Treasury, exert control in return for giving the financial support trusts could not do without?

These questions are daunting, but they need to be resolved. Pretending the law does not exist will not make it go away. Trying to ignore the question will lead either to structures at risk of being legally called into question, or risk-averse behaviour, where bodies are too nervous about the possibility of this happening to move forward. 

This brings us back to the Lansley paradox. Is it time to go back to parliament for structural change and all the upheaval that this might mean or can the existing law be used to make policy happen? Can the existing rules flex far enough to fit the NHS we are moving towards?

Despite its flaws, the current legislation makes it clear throughout that patients' interests override most barriers. If there is a relentless focus on ensuring that the patient is at the heart of a system or process, there is a good chance that there will be a way of reconciling it with the law. 

Take the question as to whether the split between the commissioner and provider has collapsed. If the law does not change, then it is absolutely clear that individual commissioners will continue to exist. That will mean that no matter how much providers take on strategic powers or responsibilities are merged in the spirit of collaboration, ensuring that care is provided will still be the legal job of the CCG. That duty cannot be delegated or transferred to providers – that is a clear constraint.  

However, there is an opportunity to take a fresh look at how that duty is discharged in practice. It may not be strictly necessary for the CCG to get involved in writing long, prescriptive contracts or hiring teams of data analysts to monitor and measure the details of care. There might well be some good opportunities to look to adopt a more strategic commissioning role, focused on the higher level using a lighter contract and leaving some of the operational work to providers.

This type of approach would, within existing laws, allow some of the responsibilities currently owned by commissioners to pass to devolved authorities like Greater Manchester, larger GP providers taking on accountability for a population’s health, and the many other new bodies for commissioning and providing care that are now evolving in the NHS.

There may come a day when the NHS will have no choice but to go back to a reluctant parliament to update the laws that govern the health service. But as long as the service is willing to work cleverly and able to demonstrate that change is on behalf of patients, it may also discover what Andrew Lansley never had a chance to find out – that existing laws can be made to serve for longer than you might think.

The views presented in this blog are those of the author and do not necessarily represent the views of the Nuffield Trust.

Suggested citation

Lamb S (2016) ‘Does the NHS need a new law?’. Nuffield Trust comment, 1 June 2016. https://www.nuffieldtrust.org.uk/news-item/does-the-nhs-need-a-new-law

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