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The NHS is headed for a devolution iceberg - whilst MPs argue about deckchairs

As private firms gather in the Titanic Hotel to discuss the profit opportunities arising from NHS devolution, only a few MPs are raising concerns in parliament about the coming healthcare lottery for the rest of us.

Image:Stower/Wikipedia

Integration” is a constant buzzword in current plans for the health service. Liverpool CCG's “Healthy Liverpool: The Blueprint” mentions it 60 times. Introducing the Healthy Liverpool Prospectus in 2014, Mayor Joe Anderson outlined a vision “for an Integrated Health and Social Care System for Liverpool”... and “a major new initiative to integrate out of hours services” and a “high quality, integrated 24/7 service”. The Prospectus said the Commission “recommended that a neighbourhood model is the best way of achieving an integrated Liverpool Health and Social Care system”.

But something else is barely mentioned these days: an integrated National Health Service, with integrated national clinical standards, nationally recommended treatments, national accountability, integrated funding through general taxation, integrated methods of allocating resources to areas of greatest need, an integrated national system of pay, terms and conditions for health service staff.

Under cover of Devolution, local authorities and Combined Authorities are gaining the freedom to take their own piece of the NHS pie and dish it out as they see fit. By 2020, there may be a patchwork of local health services, ushered in by local authorities, starting with the 10 Labour-controlled authorities in Greater Manchester's Devo Manc deal, but potentially spreading across England. The real prospectus is a devolved, deregulated, local service, partly privatised, its social care component already 90% privatised, facing a meltdown in local authority finance, competing with other localities for patients and funds, with local pay and conditions for healthworkers, and all branded as “integrated”.

If so, those who want to rescue our National Health Service will need more than a repeal of the Health & Social Care Act (2012). The NHS will need renationalising in a truly integrated form, eliminating the internal market and restoring the legal responsibilities of the Secretary of State. The NHS Bill, backed by Jeremy Corbyn and Caroline Lucas but yet to win the endorsement of any major party, would do this. But there will be facts on the ground to confront as well.

Merseyside

As with other Devolutions, the Merseyside negotiations are secret and outside democratic control. The Liverpool City Region Devolution Agreement was published on 18 Nov, signed by Chancellor George Osborne, Treasury Commercial Sec Lord Jim O'Neill, Sec of State for Communities and Local Government Greg Clark, Mayor Joe Anderson, the Leaders of the 5 Borough Councils on Merseyside, and Chair of the Liverpool City Region Local Enterprise Partnership Robert Hough.

The Agreement covers many economic sectors and there are only two references to health:

“The Liverpool City Region will continue to have further devolution dialogue with the government in the future, including on health and social care integration.” (p.4)

“Liverpool City Region Combined Authority will set out how they will join up local public services in order to improve outcomes for this group, particularly how they will work with the Clinical Commissioning Groups/third sector and NHS England / the Work and Health Unit nationally to enable timely health-based support.” (p.9)

We don't know who is conducting dialogue with the government on health and social care, with what timescale or what mandate from whom, but one signatory, Robert Hough, is also Chair of Peel Airports and a Non-Executive Director of Peel Holdings, which runs the Port of Liverpool.

On 17 Sept, Hough told a packed meeting of business leaders in the Titanic (!) Hotel

“I know I speak for everybody in the room when I say that a devolution deal will only succeed if it is materially shaped by the views of the private sector. Private sector input is vital. Collectively, we – the private sector – understand what the opportunities are; and we understand the barriers to achieving them.”

Where is Parliament in this headlong rush?

Devolution Bill

On 7 Dec, the House of Commons held the Report stage and 3rd Reading of the Cities and Local Government Devolution Bill. It originated in the Lords and was presented to the Commons by the Secretary of State for Communities and Local Government Greg Clark and the Health Minister Alistair Burt. The next move is “Ping Pong” on 12 January, where amendments will bounce between the two Houses.

The Commons debate was revealing. There were votes, all won by the Government, on English National Parks (extending commercial freedoms), the voting age in local elections (remains at 18), and whether an elected Mayor is required for Devolution to a Combined Authority (it will be). But all amendments concerning the health service were either withdrawn or, if proposed by the Government, nodded through without a vote, remarkably.

The health devolution plans are set out in two Clauses.

Clause 18

Taken in conjunction with the rest of the Bill, Clause 18 allows the Secretary of State (and it's unclear if this is the Secretary of State for Communities and Local Government, or for Health) to transfer local functions of the NHS to a local authority or Combined Authority (which may consist of separated geographical areas). Any such plan will require the consent of the relevant local authority; the Sec of State must consider that it will improve the local service; and a draft Statutory Instrument must come before both Houses of Parliament together with a report, before being approved.

Various “core duties” of the Secretary of State, for example the Mandate, cannot be transferred. However, key components of the privatisation agenda can be re-assigned to any willing local authority.

Under the Health & Social Care Act, NHS England “has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act”. This power, now in the amended section 1H(3)(a) of the NHSA 2006, allows NHS England or the CCGs to commission services from the public and private sectors.

Clause 18 of the Devolution Bill allows the transfer of those functions which “(a) arise from arrangements under section 1H(3)(a) of the NHSA 2006, and (b) relate to those providing services under those arrangements.” In other words, the entire Commissioning framework can be handed to the local authority.

Under Clause 16, the local authority could take on a current NHS (or other public authority) role, or carry it out alongside or jointly with the NHS, while the NHS may or may not continue to provide that service itself.

Gazing into the future, Clause 16 even contains “provision to abolish the public authority in a case where, as a result of the regulations, it will no longer have any functions”.

What happens to the national standards governing the NHS when functions are transferred to a local or Combined Authority? In a word, deregulation. Clause 18 requires “provision about the standards and duties to be placed on that authority having regard to the national service standards and the national information and accountability obligations”. But “having regard to” does not mean “implementing” or “ensuring adherence to”. Clause 18 also explains that “standards are “placed on” a body if the body is required to have regard to or comply with them”. The word “or” means the local authority need not actually comply with whatever new duties are drawn up “having regard to” current national standards.

Clause 19

This short Clause refers to a lengthy Schedule, amending the National Health Service Act 2006. For example, the Schedule allows for a joint committee of the devolved bodies, including at least one CCG, to establish a pooled fund to manage NHS cash. The idea that clinicians should appear to be in charge of NHS budgets is being dropped. In Greater Manchester, the Joint Commissioning Board is supplemented with an Overarching Provider Forum – whose members could of course be private providers.

The Debate?

Given the huge potential consequences, were MPs lining up to challenge the plans? Well, Dennis Skinner quipped “I have got a better chance of surviving a long number of years if we keep the NHS out of the hon. Gentleman’s and Tory hands. Keep the NHS public, and I have a chance—I am taking a gamble here—of making it.” Tory grandee Sir Edward Leigh said that in Lincolnshire “There is no question that we could run the NHS or anything like that; we are not in the business of devo-max.”

Tory MP Graham Brady (Altrincham & Sale West) pointed out the problems in Greater Manchester, with local authorities unable to appeal directly to the Sec of State over hospital reconfiguration plans because the Combined Authority now has Oversight and Scrutiny. This has provoked a Judicial Review brought by Keep Wythenshawe Special, with judgement expected after Xmas.

But Labour MP Graham Allen (Nottingham North) took up half the debate on health. He argued that the Bill left too much power with central government, because the Sec of State would retain the right to intervene in a health service devolution and take it back if he judged that it wasn't working.

“Let us say that the cities of Nottingham or Manchester wished to do something innovative and interesting on public health... with a local authority either allowed to raise its own money or given some money. If, however, the Department of Health does not like it, it could be pulled up by the roots.” MPs like Allen want more Devolution than the government is offering, with fewer provisions to intervene in a failing experiment if services are declining. They seem oblivious to central government's desire to offload responsibilities onto hapless local authorities, whose councillors and citizens will have little say in the matter.

Instead of the Sec of State intervening, Allen wanted an independent panel to say “Hang on—give these guys the amount of time they need to experiment”. The panel would include “representatives of local government where the devolution was taking place and representatives of the national health service.” There are plenty of entrepreneurial GPs ready to claim the mantle of representative. But chosen how, accountable to whom, and governed by what national standards? Allen didn't say.

How will anyone know if NHS devolution has actually led to improvements or contributed to a decline? Jon Trickett (Lab, Hemsworth) had proposed a new Clause 12, requiring the Sec of State to publish a review within 15 months, with “an assessment of how standards have been maintained, particularly of the quality and outcomes delivered by the devolved health service.” Liz McInnes (Lab, Heywood & Middleton), a former Unite Branch Sec in the NHS and opponent of health privatisation, spoke clearly in favour. She argued that the transfers allowed by the Bill

“might fundamentally reshape the health service in the years to come. We must ensure that the national health service stays national. We do not want a postcode lottery for healthcare.

Accountability and scrutiny remain crucial for a well-run national health service, delivering the best care it can for everyone no matter where they live.

“...Will central and regional government argue over the responsibility for meeting population needs and making difficult decisions, such as those on whether to close hospitals or prop up overspending healthcare providers? What will happen to neighbouring areas?

“Deals permissible under the Bill create the possibility of NHS funding melting into wider regional authority budgets, making ring-fencing or protecting impossible...

“Clauses 7, 16 and 17 allowed the piecemeal transfer of health care commissioning responsibilities from clinical commissioning groups and NHS England to local government. I am concerned about the impact that will have on the NHS, especially as regards local variation in service levels, further allocation of resources and the cross-border impact of decisions. The Opposition believe that there should be a statutory duty on the Secretary of State for Health to secure and provide universal health care and that core national NHS standards should remain in place.”

And then, inexplicably, Clause 12 was dropped without a vote.

For the Gov't, Health Minister Alistair Burt claimed “proposals for reconfiguration must currently meet the Government's four tests for service change: support from local GP commissioners, clarity on the clinical evidence base, robust patient and public engagement, and support for patient choice.”

But where is the clinical evidence in favour of devolving NHS budgets to local authorities? Where is the clinical evidence that developing new models of Care in the Community will reduce demand for hospital provision and thereby justify hospital closures, a key assumption of the Healthier Together plans up and down the country? Where is the robust patient and public engagement, as Devo deals are negotiated in secret and sprung on an unsuspecting public without notice?

There would appear to be no chance of Parliament halting this juggernaut any time soon. But NHS devolution depends on the willingness of local authorities to take on the job. If communities, healthworkers and their trade unions wake up now, there could be a chance for coordinated opposition to Councillors tempted to disintegrate the NHS.

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