Before the next bill lands: What history tells us about NHS reorganisation

Although it is no longer realistic, given that the bill to make significant structural changes to the NHS by 2027 is already being drafted, the temptation remains, even now, to say ‘Don’t do it!’. 

First, because the prime reason for the bill – a markedly changed relationship between NHS England (NHSE) and the Department of Health and Social Care (DHSC) that many would agree was needed – could have been achieved without the need for formal abolition and thus legislation.  

Second, because, more often than not, behaviour trumps legislation in the NHS.  

Third, because many of the most significant changes to NHS management and organisation, for good or ill, have not involved primary legislation. For example, retail executive Roy Griffiths introducing general management to the NHS in 1983, which is still with us, plus his introduction of the management board (the pre-cursor to NHSE); the (unhappy) merger of the permanent secretary and NHS chief executive jobs in the early to mid-2000s, and then their re-separation; the Five Year Forward View of 2014, which overturned the worldview of the 2012 Health and Social Care Act without a single line of legislation; while no legislation was involved in the mergers that happened in practice, though not in law, first between the Trust Development Authority and Monitor into NHS Improvement, and then NHS Improvement into an earlier version of NHS England.  

Fourth, many of the acts that have affected the structure of the NHS have not achieved quite what was intended and have been – or have had to be – subsequently revised. Some have even caused harm, for example the 2006 removal of GPs’ 24/7 responsibility for organising out-of-hours care for their patients. 

So faith that patient experience is going to be significantly improved by abolishing NHS England and myriad other bits of the superstructure – foundation trust governors, Integrated Care Partnerships, local and national Healthwatch, the Health Services Safety Investigation Body – should be limited. 

Furthermore the risks of legislation are well known. A major diversion of effort away from actual service improvement. Legislation taking longer than hoped and almost inevitably involving concessions, such as the 2002 Act which set out to abolish Community Health Councils but ended up creating Public and Patient Involvement Forums. The abolition of Healthwatch might turn out to be history repeating itself. And any structural bill becomes a Christmas tree off which any and every pressure group seeks, entirely understandably, to hang its bauble – the resistance to which consumes ministerial and civil service time that could better be spent seeking to improve services. 

So how to make the best of a bad job?  

1. Keep the bill as small as possible. Sam Jones, DHSC permanent secretary, told a recent Institute for Government meeting, admirably, that the aim is ‘a bonsai not a Christmas tree’ – but bonsai trees need an awful lot of care and attention if they are not to run wild. 

2. Have a story to tell about how this will improve services. The current account that the NHS is being brought back under ministerial control in order to devolve power to the front line is likely to look oxymoronic when it becomes clear quite how many of NHSE’s statutory powers and services ministers look set to absorb. 

   “Any structural bill becomes a Christmas tree off which any and every pressure group seeks, entirely understandably, to hang its bauble – the resistance to which consumes ministerial and civil service time that could better be spent seeking to improve services.”

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3. In telling the story, be as clear as possible about the end state, even if the end state does not directly involve the legislation. For example, when this is all done, will there be an NHS Executive operating within the department, as there was before 2010? Or are the permanent secretary and chief executive roles to be merged, as they were between 2000 and 2006? Or are ministers going to do everything? Equally, the 2022 Act is in part being replaced because the end state was not clear. It split the idea of a single Integrated Care System into two statutory boards of unequal power (an ICB and an ICP), with no clear agreement about precisely what an ICB was for. Was it there solely to seek better integration or was it also there to performance manage?  

4. If the bill is going to legislate for a single care record, for heaven’s sake learn the lessons of the failed attempts to do that in the 2000s and 2010s. Be crystal clear from the outset about what the record will be used for, who will have access to it (and how far and to whom), and with what restrictions – for example whether the resulting data will be sold, even in anonymised form. 

5. Quietly forget parts of the recent 10 Year Health Plan, for example, that only the best performing foundation trusts will be allowed to create integrated health organisations. Why have that restriction? It assumes that the best performing foundation trusts will always be the best trusts – a deeply unlikely state of affairs. If that was ever intended to be in the bill, it should not be. 

6. Cling to two quotes from the past. The first is to remember that it is behaviour and contracts that affect performance far more than structures. Or as David Flory, the former deputy chief executive of the NHS, put it after going through 30-plus years of NHS reorganisations, that his ‘overarching conclusion’ is that it is ‘the personalities, the relationships, the behaviours, and the trust between individuals or lack of it’ that define success or failure. And second the stricture of the former Conservative health secretary Stephen Dorrell over Andrew Lansley’s mighty 2012 Act. ‘Legislation should be an accurately targeted rifle shot, not a carpet bombing.’