Five traps to avoid in a new round of NHS legislation

Long read: With proposals having been made for a significant legislative overhaul of the English health service, in this long read we look at both history and current trends to highlight the traps that need to be avoided if any reforms are to be successful.

NHS England’s ”Next steps to building strong and effective integrated care systems across England” proposes a significant legislative overhaul of the English health service. It would build on the increasing role of joint NHS and local authority “integrated care systems” (ICSs).

The paper’s preferred option (option 2) is for these 44 committees covering England to become statutory bodies, taking over most of the functions of the clinical commissioning groups (CCGs) who currently plan and fund most health care. It also presents a less radical option (option 1) where ICSs would remain as committees, including CCGs as members, but get legal backing and take on more responsibilities.

Each ICS would oversee more local partnerships between NHS trusts, councils, GPs, charities and other providers to deliver integrated services at so-called “place” level, with boundaries generally the same as existing councils. Meanwhile, NHS trusts would be pooled together in “provider collaboratives” at local and regional levels.

The ambition to create a more collaborative system is right. It works with the grain of changes over the last six years, which have often strained against the more market-oriented legal world created by the 2012 Health and Social Care Act.

However, history and current trends suggest a series of traps that reforms will need to address and avoid if they are going to be successful.

1. Expecting structural change on its own to lead to service integration – or concrete benefits for patients

Looking at the NHS’s history, we should be sceptical that structural reform will necessarily lead to changes in care delivery that make services more integrated.

Since 1999 there have been over 20 legislative reforms, policy strategies and national transformation programmes to improve health and social care integration in England. A Nuffield Trust analysis of seven key indicators of integrated care found that between 2011/12 and 2018 only one improved, three deteriorated, and three showed no change or an inconsistent pattern.

One reason is that the problems driving avoidable hospital use and disjointed care are rooted in staffing, funding and incentives, not just structures. Changing laws can introduce complexity without adding clarity around roles and accountabilities. 

In 2014, Scotland legislated for NHS boards and local authorities to form partnerships called integration authorities, with new joint boards that would oversee and finance social care, primary and community health care and adult emergency hospital care.

Audits of integration authorities found that their impact was limited due to complex governance arrangements, difficulties agreeing budgets, and inadequate workforce planning. The aim to shift more care out of hospital was not fully met due to financial pressures in the acute sector, and budgets for hospital planning have not been fully delegated despite the requirement to do so. Structural changes have also so far failed to facilitate collaborative leadership and the sharing of skills and data needed to deliver intended plans.

Health and social care commissioning and planning have been integrated in Northern Ireland since 1973. Some research suggests that this has removed barriers to integrated staffing, budgets and information exchange. However, problems of delayed discharges and avoidable emergency admissions persist, and service users report disjointed care. Structural integration has failed to place health and social care on an equal footing, and limited progress has been made in shifting resources from acute services into the community.

2. Forgetting the risk of disruption and distraction

Even where structural and legislative changes deliver benefits, it is important to balance these not just against the downsides of any new system, but also the cost of change itself.

The 2012 Health and Social Care Act included the abolition of primary care trusts and their replacement with clinical commissioning groups; the abolition of strategic health authorities; a push for all trusts to become foundation trusts; and independent status for NHS England.

The then Prime Minister David Cameron reflects that he underestimated the political and operational disruption this would cause. The extent to which this came as a surprise is illustrated by the fact that it was agreed alongside a coalition commitment “to stop the top-down reorganisations of the NHS that have got in the way of patient care”. The tangible costs included £1.5 billion on items such as redundancy and new IT systems, and a tripling in management consultancy spending to £600 million in a year.

Papers surveying the effects have warned that, beyond this financial cost, there was an opportunity cost as managers focused on setting up new structures, changing teams and responsibilities, and redrawing boundaries rather than on improving services. The King’s Fund concluded that this effect may have lasted around three years, and contributed to worse performance and financial control.

Important in understanding the effect on behaviour is the context that NHS bodies have been reconstituted or abolished every few years for several decades. Most senior managers will have spent a significant proportion of their career reorganising and being reorganised, and will be ready to move into this mode: many will have learnt this as a route to advancement.

The current proposals show promising signs of recognising the costs of change – notably in the “stable employment promise” to staff in CCGs, which should help avoid redundancy pay-outs and a game of musical chairs for new positions. But the lessons of the past suggest disruption and distraction are easily underestimated.

3. Leaving nobody to hold the system to account locally

Absorbing CCGs into the ICS under “option 2” could help transcend the tensions and transactional focus that persist in the system. But it is worth pausing to consider whether anything will be lost in pursuing that approach.

Particularly under this more radical option, these proposals signal the long-trailed demise of the internal market where trusts and other providers compete for contracts handed out by CCGs and NHS England.

For all its many faults and costs, that system does create clear roles, giving independent local bodies the task of asking difficult questions to hold the organisations delivering care to account. While the effectiveness of the internal market in driving improvement has been widely questioned, it will be important to consider who fills that role in future.

Choice and competition have never been strong, but without them there is a risk that patients simply have fewer options for a say in their care. The more detailed proposals around the legislation will need to find ways to show accountability to the population is bolstered, not weakened.

The document is not entirely clear how ICSs will relate to individual providers, integrated care providers and ‘places’, and how clear any accountability will be within those relationships. Provider organisations within the ICS will retain their status as individual entities. They may face tensions between pursuing what is right for their trust, versus what is right for the ICS as a whole.

It is especially unclear how ICSs as statutory bodies – with their own accounting officer and no power of individual organisation veto – would work with foundation trusts, who would be represented on their board but are also autonomous organisations directly accountable to Parliament. When relationships are working well, this is of relatively little concern, but it could make tensions in worse times difficult to resolve.

It will be important to have clarity over how ICSs are expected to relate to NHS England, whether that relationship is intended to be collaborative or more hierarchical, and how it will fit with NHS England’s direct powers over trusts.

Proposals for “provider collaboratives” are superficially attractive: collaboration between providers to ensure effective patient pathways is clearly desirable. But as the proposals note, providers work with different partners at different levels in different circumstances – not always those in the same area. Although we await further detail, it is not clear what problem these proposals are intended to solve.  There is a risk that this change will strengthen a perception of the new NHS as a monolith in each local area, held to account only by a distant centre.

Meanwhile, for local authorities, there must be a risk that this looks like a dilution of control and flexibility to suit an agenda created by the NHS, with the ultimate goal of saving the NHS the costs of hospital care. Will they be bound into a joint decision-making process in which their voices are weak, losing their ability to run social care and public health services in the way they want to serve local populations?

4. Not thinking through what happens to public health responsibilities

These proposals would reach Parliament at around the same time as the formal creation of the National Institute for Health Protection and the start of the transfer of Public Health England’s health improvement functions to future host organisations. The document rightly emphasises that much of what ICSs will be asked to achieve centres on prevention.

This raises questions about whether public health responsibilities now held by local government will or should come to be exercised by ICSs and their “place” partnerships. This may be logical, but several difficult questions must be answered before it comes about in theory or in practice.

Will the national set of prescribed functions for councils be maintained, expanded to cover work through ICSs, or shifted entirely to the latter? If ICSs take on the local authority’s flexibility in choosing priorities and approaches, or have influence over this, what happens to the democratic oversight that exists today? And who oversees them in exercising functions that are currently beyond the mandate of NHS England?

At the moment there is a ring-fenced core grant, and local authorities make decisions as to whether to spend more. Would the ring fence be maintained, and is discretionary public health funding likely to rise or fall? It might be hoped that decision-makers also responsible for hospital and other NHS spending would incentivise investing on prevention, but there is always the risk of the opposite: that easily measured, high-profile health care services would tend to win the financial argument.

5. Handing down responsibility for specialised services to areas that are too small

Commissioning of “specialised” services – less common, highly sophisticated treatments like proton beam therapy and dialysis – is currently done nationally and regionally by NHS England. The new proposals suggest passing most of the budget and planning responsibilities to ICSs.

There are good reasons for this: it could help provide more joined-up care across specialised and local services. However, large populations are needed to manage the costs of these relatively rare but expensive services. Patients sometimes must be sent across the country for a specialised procedure. These characteristics caused a range of problems when specialised services were devolved to local primary care trusts 20 years ago, leading to disputes between them and the introduction of consortia to work at a bigger scale.

It will be very difficult to create a “needs-based” formula, as suggested in the proposal, which gives each area a fair amount of money to cover the costs of these services locally. The requirement for them may not be related to age and socio-economic indicators used to predict costs more generally, and people sometimes move to be closer to specialist centres. Getting it wrong would risk financially destabilising providers.

Chemotherapy, radiotherapy, cardiac services and renal dialysis are examples of areas where the caseload is relatively large and consistent. This might make them better candidates for devolution to ICSs than others.

Specialised services also require considerable expertise to commission well, and overseeing them so that they stay aligned with what the rest of the system needs is not an easy task for a new organisation.

Policy-makers will need to think very carefully about which services to devolve responsibility for, and how the skills, funding, and accountability mechanisms can be put in place.


For several years now, the NHS in England has been trying to move in the direction of being more cooperative while trapped in a legal system that was specifically designed to encourage vigorous competition. It is very understandable that health service leaders and politicians think this needs to change.

But past experiences suggest that legislative reform in the NHS is a difficult procedure that can leave the patient with a range of side effects. Getting it right means both controlling the scale of the operation and the expectations about its benefits, and carefully avoiding leaving specific areas like public health and specialised services in places that do not make sense.

And these changes, like their predecessors, will face a question that has hung over the health service since its inception: in a national service, who, if anyone, is responsible for holding services to account on a level closer to the patient than the national state?

Suggested citation

Dayan M, Buckingham H, Curry N, Reed S, Edwards N, Fisher E and Oung C (2021) “Five traps to avoid in a new round of NHS legislation”, Nuffield Trust comment.