The Care Bill seems to be passing through Parliament with barely a ripple. Except for Clause 118. This is the clause where the Government is taking the opportunity to ‘clarify’ the law surrounding the Trust Special Administrator’s powers to drag other trusts into the frame when considering what to do with a failing one.
It stems from the successful judicial review over the proposed closure of Lewisham Hospital’s A&E department as part of the Special Administrator’s plans to deal with the ill-fated and effectively bankrupt South London Healthcare.
It’s not unusual for the Government to change the law if they lose a judicial review. They argue anyway that what happened over Lewisham was already covered and they are merely making the law crystal clear.
I don’t think this clause is going to be used to achieve widespread reconfiguration
Still, it is slightly surprising that the affairs of a failing organisation will be partially solved by taking apart a sound one. Rather like, say, deciding that the way to solve the financial problems of a near bankrupt grocer’s store is forcibly to close the successful Tesco Metro next door. However, it has a logic.
A lot has been written and said about this clause and its implications. These are my three conclusions.
First, it is a clear recognition that the health service isn’t like the high street. There is obviously a limit to competition. The health economy is still an important concept and rational planning of services for a population is highly relevant. Whoever thought otherwise? This is the only argument as to why a trust that isn’t failing should be forcibly included in resolving the affairs of one that is.
Second, the kind of curtailed consultation required of the Special Administrator isn’t appropriate when a non-failing trust is involved. The Government have relaxed the requirements a little, following pressure from the British Medical Association, NHS Confederation and others, by making it clear the Special Administrator must seek written views from and hold a meeting with representatives of the non-failing trust and its staff and commissioners.
But where do the public stand in this? Even if they are invited to give views, the timescales are much shorter than usual. It is important to get on with resolving the problems of an obviously failing trust. But, in my view, if those plans involve another trust, the standard rules of consultation, including timetables, should apply.
This brings me to my third point. Some have suggested this is a backdoor, easy way of achieving reconfigurations involving decisive but, for the local public, undemocratic action. The policy and NHS community is a bit two faced about this.
We say widespread reconfiguration is needed and press politicians to be bold. However, when faced with a clause that might help do this we go ‘oo..er, not sure about that’, rightly recognising the need for public support for change.
However, I don’t think this clause is going to be used to achieve widespread reconfiguration. Special Administrators have so far only been involved in South London Healthcare and Mid-Staffordshire. Both are extreme cases.
More frequent use of Special Administrators as permitted by Clause 118 might resolve some problems. But there would be a heavy political price to be paid locally and nationally as it would send a worrying message about inadequate funding and poor management of the NHS, especially if successful organisations found services closing as a result of a Special Administrator’s recommendations.
It is a sensible measure to deal with failing trusts, but a wise government and regulator would use it sparingly. Any changes needed to a successful neighbouring organisation for the overall benefit of the health economy should be subject to the normal service change consultation requirements.
McKeon A (2014) ‘Got a problem? Call 118’. Nuffield Trust comment, 30 January 2014. https://www.nuffieldtrust.org.uk/news-item/got-a-problem-call-118