A good day to bury a significant piece of legislation?

This content relates to the following topics:

Amid the furore (at least in health policy circles) of the Competition Commission’s decision to refuse the merger of trusts in Bournemouth and Poole, it may have passed people by that some potentially very significant changes to the current failure regime have been approved in amendments to the Care Bill.

These amendments enable the Secretary of State to mandate service change across a whole health economy, not just within the trust subject to the failure regime. They also extend the currently challenging timeframe in which the Trust Special Administrator (TSA), appointed under the regime, has to develop the proposals. But perhaps the most significant amendments effectively remove two of Lansley’s tests for significant service change: the TSA proposals will not require public consultation or universal commissioner support. Many people have noted the urgent need for this type of service change in a relatively short timeframe, but the NHS has found it nigh on impossible to implement in many parts of the country so far.

The amendments come in part as a direct response to the experience from the first use of the failure regime for South London NHS Trust, where the local authority succeeded in a judicial review of the decision to downgrade neighbouring Lewisham Hospital. In the course of the Lords’ debate on the amendments, Lord Howe said, ‘NHS trusts, foundation trusts and other providers don’t exist in isolation from each other. They are part of a complex, inter-dependent local health care economy. Issues of clinical and financial sustainability nearly always cross organisational boundaries.' It is hard to argue with this logic. However, the consequence of the proposed changes is that, despite explicit statements in the original legislation that the failure regime should not be used as a backdoor route to service reconfiguration, it risks becoming precisely that. And a Health and Social Care Act that sought to keep politicians at arm’s-length from the day-to-day running of health services and to put local clinical commissioners at the heart of decision-making, now gives the Secretary of State more direct control over local service configuration and potentially disenfranchises local commissioners as well as the local population.

The amendments also leave many unanswered questions: could service change be forced on unwilling providers and, if so, what does that mean for the autonomy of foundation trust boards? What would happen if local commissioners do not choose to purchase the reorganised services? Could the competition authorities be the only check and balance left in the system? What happens if the competition authorities block proposals supported by the TSA and the Secretary of State?

Any discussion of failure and the role of the special administrator brings to the fore the dilemmas all system leaders face in this area: implementing legislation that unblocks much-needed service developments but could lose support from commissioners, clinicians and the public, potentially undermining efforts to create a less centrally-controlled health system.

While it is clear that the failure regime is intended to be enacted only in extreme circumstances and where other attempts at reconfiguration have failed, the tension between central direction on the one hand and a competition-led approach on the other is very hard to reconcile.


Ed Macalister-Smith

NHS Leadership Coach,
Comment date
31 October 2013
The problem is that the "failure regime" is not in reality a failure regime.

Heaven knows, I think that the last thing that a struggling organisation, it's staff and it's patients need is to be labelled a failure. What it does need is robust and passionate leadership to correct whatever is wrong.

But when you have a policy labelled "failure regime", it is not unreasonable to expect that such a regime will in fact deal with the problem. That expectation leads to many people thinking that the problem is being managed, so they turn away and get on with business as usual. Current examples show this not to be the case, as the system and as politicians struggle with the concept of actually making uncomfortable change happen. There are at least two FTs that I know of (I am sure therefore that there are more) that are recurrently insolvent and are propped by non-recurrent and non-sustainable bungs - and have been for at least each of the past 2-3 years. The failure regime appears to have had almost no impact on them...

Back to the point - if there is a policy that is intended to handle bits of the system that need fixing for whatever reason, then please make it work. Otherwise, let's bring back effective strategic planning into vogue - oops, that doesn't fit with competition policy does it?...

Add your comment