Dr Graham Winyard: concerns about the proposed ACO contract

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  • Posted:Wednesday 21 March 2018

Speaking at our breakfast event on Integrated care on 21 March 2018, Dr Graham Winyard, former Deputy Chief Medical Officer and Medical Director, NHS England - and one of the people challenging the Accountable Care Organisation contract in court – outlines his concerns about the proposed contract.


  • GW: Graham Winyard
  • CH: Chris Ham

GW:    How does a happily retired 71-year-old former operatics, someone who I think would be known for conciliation rather than confrontation come to be a claimant in the judicial review against the Secretary of State and NHS England?  This was never on any bucket list of mine.

    It said that history doesn’t repeat itself but it often rhymes and I felt I was detected a worrying rhyme.

Going back to the 1990’s when I was more at the heart of things, the NHS was chronically short of capital.  The obvious solution was for the Treasury, which can borrow money far more cheaply than anyone else, to provide more capital.  But we were told the received managerial/political wisdom was that was not possible.  But instead we were offered a cunning work around, in which the NHS and the private sector would get together to build and run hospitals.  Critics, and there were many, my fellow claimant Alison Pollock, Chris, were brushed aside.  We knew what needed to be done, they needed to get with the programme, we didn’t want any of these abstract difficulties.

The recent National Audit Office report has confirmed what a financially catastrophic policy this has been.  The NHS has paid way over the odds for its hospital, it’s been fleeced on related services like insurance and management consultancy and it is saddled with long-term service contracts that it can’t afford but can’t afford to get out of.

Fast forward twenty-five years.  As well as a desperate funding crisis in the NHS, there is, I think, general agreement that it’s really struggling with a fragmented structure and an over-commercialised procurement process.  And this all gets in the way of providing joined up patient care.

The pretty obvious solution, you might think, would be to unscramble some of that legislation.  But we’re told that’s not possible.  Instead we’re offered an ingenious work around which will bring organisations together into new non-statutory bodies, which can include private sector organisations as partners, and we’re going to do that using 10-15-year long term contracts.

Does that resonate?  Does that sound familiar?  What could possibly go wrong?

Well, I think quite a lot.  And it hasn’t helped that this policy has not been developed openly.  Whatever you think of the ACO policy, it represents really substantial change that in any other time would have been openly consulted on, that hasn’t happened.  It’s been incrementally and I think in some ways in an underhand way, introduced and one of the legacies of that is deep suspicion.  And the Prime Minister reminded us at the weekend that this Government is not trusted with public services.  If you behave in an evasive way when introducing a new policy, you can only expect that distrust to get to worse.

One of the new experiences of this judicial review has been crowd funding.  We’ve raised £280,000 without difficulty from 9,000 odd donors, these are lots and lots and lots of small people who don’t just click and agree on something, they put their hands in their pockets and have given us money.  That, I think, is a good measure of public disquiet.

Now, the other problem with not setting out the policy properly in the first place, and it was interesting the House of Commons library when it produced its briefing paper, it had to turn to the King’s Fund for a definition.  I mean what sort of governance is this, when the Department of Health can’t provide one simple clear explanation of what it’s up to.

The other problem is if you don’t set out your policy clearly, it may well be you’re not quite sure what you’re doing and certainly the people you want to do it aren’t sure either.

Now, it may surprise you to learn having said all that, that I’m actually an enthusiast for the idea of a single organisation taking most decisions about health and care for a geographically defined population.  Is a very good idea, it’s an idea I remember because I used to work for one, it was called a District Health Authority.  It was very simple.  It worked very well.  I’m not suggesting a return to the rose-tinted 1980s as the solution to all our problems, but it had a lot of virtues, it was simple, it was clear, we were accountable and one of the reasons it worked so well was we were both the commissioner and the provider.

What I do find difficult is how it works if you’ve got a single provider organisation and over them active commissioning.  And I would have thought they’d be all over each other.  And I tend to agree with NHS England’s highly paid solicitors when they write: crucially to be really effective ACOs would also need to be able to commission as well as provide services.

Now, unfortunately that’s legally dubious and that’s part of the judicial review and I won’t bore you with it, but it does seem odd that we’ve got a degree of ambiguity about the relationship of commissioning to ACOs that’s unresolved.

One way of resolving it, of course, is to say ACOs will be commissioned on the basis of long-term health outcomes, that’s attractive particularly to somebody like me with a public health background, but it does have important implications.  Those measures are long-term, they change slowly and adopting that approach would mean that decisions about most of the issues related to healthcare that people worry about will be passed to the ACO.  You can’t, I think, have an active commissioner and an active ACO.  It’s about like those swish chalets that tell the weather, one person can be out and the other has got to be in.

Why does that matter?  It’s because the CCG at the moment, whatever you think of them, is the key vehicle for public accountability.  The lighter it’s touch, the more the discretion would lie with the ACOs and the legal fall and governance of ACOs are for them to determine.

So, we would be moving to a NHS where most of the decisions that matter to the public will be taken by non-statutory bodies that can include private and commercial partners whose priority will be profit not public service.

Difficult decisions are always going to be inescapable.  What will be provided, what won’t be provided?  Thresholds for treatment.  These organisations will be managing the boundary between healthcare, which is free, and social care, which is means tested.  But, because the current procurement requirements work as they are ACOs will have to be established by these long-term commercial contracts and they can take legal forms that include private for-profit companies.
And so, we could easily end up in a situation where it’s in the clear financial interests of an ACO to progressively reduce some form of care that it provides free from public funds in favour of means tested packages of care rebadged.  The commercial partners within the ACO would no doubt step forward to fill the gaps with services that people would pay for and offers of insurance policies and top up arrangements.

If you think this is fantasy, this is what is already happening in the dental sector.  The reason the rhyme of history is important, I think the history of the PFI should leave us in no doubt that if there are opportunities to profit from the NHS, they will be ingeniously and enthusiastically exploited by people whose priority is profit rather than public service.

This is entirely possible within the legal frameworks being set out in the draft ACO contracts.

This won’t happen suddenly.  We’re not going to have a takeover of the NHS by one private firm in a particular area, but what is very clear is some of the vanguards are making huge play of their partnership arrangements with various private providers offering this, that or the other service.  And the way this could work, you could have an ACO as a special purpose vehicle, that’s something that’s used for money laundering among other uses, with people round the people, the real decision taking table, will involve those working for profit as well as the NHS partners.

It’s not argument to say that the first two are all run by nice cuddly NHS folk with the right attitudes.  I’m sure they are.  But this is a policy that will roll forward in all sorts of different ways and we won’t see where it goes until we wake up to the problems and we discover there are these 10/15-year contracts in place, like the private finance initiative.

That’s why I’ve roused myself from my happy retirement.  I’m glad I have done and am entirely unapologetic.

CH:    Just to clarify one point; if the ACO contracts were removed, would you be supportive of the other developments that I and others have referred to?

GW:    I think there is, as I was saying, a simple solution.  If Parliament could make ACOs democratically accountable public bodies, all my reservations disappear really, and I understand there was an offer at the Health Select Committee from the Labour MPs yesterday to support a one-clause bill that could do that.  That’s a lot to play for.