A modest proposal? Choice and competition in the long-term plan

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‘When the facts change, I change my mind. What do you do?’ That paraphrase of a quote, usually (but not entirely accurately) attributed to John Maynard Keynes, was Simon Stevens’s response at the Nuffield Trust’s Health Policy Summit last week to an entirely fair question from Mark Dayan.

Namely, how is it that the man who was first Alan Milburn’s and then Tony Blair’s special adviser in the early 2000s and did so much to re-inforce the ‘choice and competition’ model in the National Health Service is now systematically unpacking much of it?

According to Stevens, the primary problem with the NHS, back in the late 1990s and early 2000s, was over long waits for planned care. That market-mimicking agenda – which included free-standing foundation trusts, the tariff, the independent sector treatment centres and the right of patients to go to a private provider willing to deliver their care at NHS prices, along with lots of extra funding and extra staff – were designed to tackle the long waits. And they did. Waiting times tumbled.

The problem now, as in all industrialised countries, is the rise of multi-morbidity, which demands integration and joined-up services, ‘so the policy mix has to evolve’ Stevens said. And, as pretty much everyone from the Prime Minister down has acknowledged, Andrew Lansley’s 2012 Health and Social Care Act, with its total embedding of the choice and competition model, is getting in the way of that.

Hence NHS England’s proposals for changes to the law set out in the long-term plan and a subsequent document. These are firmly presented as a modest proposal, a sort of minimal set of changes aimed at getting integrated care to work better. No-one wants to be accused of yet another ‘top-down reorganisation’ – whatever that phrase may mean.

But a little like Jonathan Swift’s ‘modest proposal’ for solving the Irish problem, NHS England’s proposals effectively eat the children of the Act. The purchaser–provider split would go at the top through the merger of NHS Improvement and NHS England (and the subsuming into that of Health Education England’s workforce role) as is already happening de facto, although not legally.

The role of the Competition and Markets Authority (CMA) in NHS mergers would go – a task the CMA might in fact be happy to lose – as would NHS Improvement’s competition requirements (ie, the market regulation powers of what was formerly Monitor). The NHS would be taken out of the Public Contracts Regulations – ie, the current procurement law and regulations. A new power to create integrated care NHS trusts would be created. And NHS Improvement would have powers, in certain (undefined) circumstances, to direct mergers and acquisitions of foundation trusts (already in recent years subject to control totals over their finances), as well as a new power to agree their capital spending. There’s not a lot left of the foundation trust model in that. And there are other proposals.

Add to those the current re-organisation of NHS Improvement and NHS England into joint regional offices (not yet the re-emergence of some form of regional health authority, and that is not proposed) and all this is clearly heading back to the future of a much more managed system. These are not a few tweaks. They are a major set of changes, essentially tearing much of the heart out of 2012 Act. A good thing too, many – though not all – would doubtless say.

But before those who have long opposed the purchaser–provider split and the so-called ‘internal market’ break out the champagne, this does not mark the entire end of ‘choice and competition'.

There will still be commissioners – NHS England itself and the clinical commissioning groups, though likely many fewer in practice if not in name. And NHS England is proposing that commissioning (purchasing) should be subject to a new statutory ‘best value’ test. That is straight out of the New Labour playbook, where compulsory competitive tendering for local authority services was replaced by ‘best value’. That took routine and costly tendering out (the same aim as for the NHS here), but still left public services going to the private sector where councils decided it made sense to tender. Conservative councils did that more than Labour ones. But Labour ones did – and do it – too. So the NHS will remain free to purchase clinical services from the private sector where it believes that will make sense. The full extent of that is likely to depend in part on the precise details of any new (and as yet undefined) statutory code.

Furthermore, Stevens was crystal clear that ‘choice’ in planned care will remain. He didn’t specifically say that would include the current right of patients to choose a private provider willing to deliver services at NHS prices. But should patients have the option to choose where they are looked after for planned care, he asked, rhetorically? ‘Absolutely, we should sustain that,’ he said. And of course, where there is choice, there is, inevitably, competition.

Finally – and leaving aside the huge challenge of getting any legislation through this Parliament – NHS England’s proposals are entirely and understandably silent on a key issue: Brexit. The competition and procurement rules are part of EU law. If the UK (or, more precisely, England in this case) completely leaves the European Union, it can of course re-write its own law. But EU law will continue to apply in any transition period, and may continue to do so depending on the precise terms of any deal. So further changes may be needed – possibly including, for example, the complete abolition of foundation trust status – if England is to get itself into the position of Scotland, Wales and Northern Ireland where these things do not apply in the same way. But that’s a question for the lawyers to answer.

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