What is the Health and Care Bill and why does it matter?

Key:

• SA: Siva Anandaciva

• RM: Richard Murray

• RC: Dame Ruth Carnall

• SO: Samira Ben Omar

• GM: Gabrielle Anne-Marie Mathews

SA:                  Hello, and welcome to The King’s Fund podcast. This is where we like to talk about the big topics and ideas in health and care. My name is Siva Anandaciva, I’m the Chief Analyst here at The King’s Fund, and I’ll be your host for this episode. The topic we’re going to cover today is legislation, specifically the health and care bill working its way through parliament as we speak.

Now look I think we need to acknowledge right off that. You would be well within your rights to be sat there thinking at that a podcast about legislation is about the most boring topic of all time. But let me read you some quotes. Instead of a reform so big, you can see them from space, the biggest revolution in the NHS since its foundation 60 years ago, a set of reforms that is going too far, too fast.

Now these are just some of the ways the 2012 Health and Care Act, the Lansley reforms, were described, while the new health and care bill has not yet attracted the same level of emotion. It’s still arguably one of the biggest shake ups to the health and care system in a decade. So, if you’re not convinced already, I hope by the end of the episode you will be convinced that this stuff really matters.

In this episode we’re going to discuss just what the bill is trying to achieve. Why it should matter to you and me, and how changes in the law may eventually show up in changes to how we receive health care. Please note that we’re recording this episode on Monday 15th November, so that’s ahead of report stage and third reading of the health and care bill in the House of Commons.

For this conversation I’m joined by two experts who have been both architects and deliveries of previous reforms. Richard Murray is the Chief Executive of The King’s Fund and a former director of finance at the Department of Health and Chief Analyst at NHS England. Dame Ruth Carnall has been the Chief Executive at many NHS organisations, an advisor to the Mayor of London on health issues and she led the NHS in London for seven years. Richard and Dame Ruth welcome. Thank you for joining me on this episode.

RM:                 Thank you very much.

RC:                  Thank you.

SA:                  Now let’s start by trying to make sense of this health and care bill. I started with some quotes about the Lansley reforms from 2012, and I have one more, “You cannot encapsulate in one or two sentences the main thrust of this.” That was Simon Burns, a health minister at the time, perhaps inadvertently expressing just how complex that set of legislation was.

So, Richard, I’m going to start by giving you the Simon Burns test. If I’m a punter on the street, can you please encapsulate in a few sentences what the current health and care bill is trying to achieve?

RM:                 Well, the current health and care bill is trying to make it easier for organisations in the health service and in social care and elsewhere, all to work together to try and deliver a more integrated service. So, GPs, hospitals, mental health services, social care, the voluntary sector. Many barriers have stood in the way of them working together to provide a seamless pathway for patients and for users, and this bill is trying to make that much easier.

SA:                  Thank you. So, if the previous legislation really did feel like it had competition at its heart. It feels like the current set is about collaboration and working together. Dame Ruth, is there anything you would add to the punter on the street on the current set of reforms?

RC:                  I guess the way I would answer the same question would be to compare the two. So, for me, the Lansley reforms resulted fragmentation and lack of clarity about who was in charge, lack of direction. It started off as a set of market base reforms and they were modified, and it ended up as something that was incredibly confusing and difficult for people to understand. And I see this set of reforms as a potential antidote to some of those things, so potentially collaboration, not fragmentation, and potentially some clarity around authority, whereas before there wasn’t.

SA:                  Great, thank you both. I think that’s the Simon Burns test passed. We’ve started to discuss what these reforms are hoping to achieve, but how do they relate to the challenges people are facing on the ground at the moment.

To help us understand this, we spoke to Samira ben Omar, a community organiser and community development worker, who has worked in the NHS for over 20 years. And we also spoke to Gabrielle Anne-Marie Matthews, a medical student, member of the NHS assembly. And we wanted to get their perspectives on the key challenges facing the NHS at the moment.

GM:                 So, I think I want to start addressing this as a patient and then a professional. So, as a patient, I think there are three main things. The first one is communication breakdown. So, whether that’s appointments that are cancelled or delayed, and just how I find out about it can range from trust to trust, and hospitals within the trusts. And that means that I have to run around almost as a co-ordinator in person, so secretary for my entire health schedule.

SO:                  What COVID has shown us is that there is a disconnect between the system and community. And it really played out in terms of really, it’s impact on communities as a whole, especially those marginalised communities or communities who are often excluded, where we’ve seen the rates of death amongst both our frontline staff and our communities. So, I think the biggest challenge in health and social care is the building and rebuilding a relationship of sustainable trust with our communities.

GM:                 As a professional, I think I’ve struggled with finding how I want to be as a, kind of, developing my senses as a clinician as I come to the end of medical school. Reflecting on my patient experiences, there are so much that I know I would want as a patient, but then trying to do that and give that as a medical student is really hard. So, I think having time with patients.

We’re really lucky as medical students that we often get booked extra long clinic appointments. Or when I was in GP, I would get 20 minutes to see a patient, over the ten minutes for the GP, which feels amazing and you can tell the patients love it, and you can talk through everything, but figuring out how I would do a consultation in half of that time and still feel content and happy is near impossible. So, I’ve spent a lot of the last year thinking about how we can be kinder in healthcare.

A big issue that I’ve encountered is that teams often don’t feel like I had imagined teams should feel like or would feel like. It changes a lot, even within departments, so I think those are the two main challenges that I face. And then the two of them come together, it’s that intersection that I mentioned about how can I be the clinician that I would have wanted as a patient in a system that’s, kind of, pushing constantly and pushing everyone constantly to their standards and to their metrics of success.

SA:                  I think what we heard was a real sense of what life is like on the ground, where there is a potential disconnect between the health and care system and what local communities need. Where the lack of communication between different parts of the service has a real impact on how people experience care and the sheer pressure that staff are under in the system. And if you pick up the papers, you probably will read some of the same things about workforce crisis, longer waits for care, inequality, and access.

But Ruth and Richard when you look at the health and care bill, what do you see in this bill and this wider set of reforms that could help tackle some of these issues like the workforce, like inequality, like longer waiting times. Is there anything in there that would give Samira and Gabrielle and other staff hope?

RM:                 Well, there are some. So, I think particularly the point about connecting to communities and beginning to confront some of the challenges around inequalities that many health reforms have really struggled to deal with. The bill does try and lay out a way forward. It brings together the different parts of the health service. It brings together different parts of local government. It tries to bring the voluntary sector much more strongly into play and it deliberately tries to look out through the partnership to these different parts of society, to these different communities. That doesn’t mean to say it definitely will work, but it is an attempt to try and bring those voices inside the system rather than having them stuck on the outside. What it doesn’t do, and I think legislation might struggle to deal with are some of the issues around instability and bullying, and, of course, by itself at the moment as it’s drafted, it will do very little on the workforce challenge. And so many of the problems faced by people, both working in the service and trying to get into the service at the moment, really go down to a lack of staff, a lack of capacity, and the bill doesn’t confront that.

SA:                  And you said as it’s drafted. Do you think there should be a change in drafting that would bring the workforce element more to the fore or offer more hope or a solution?

RM:                 Well, the most straightforward thing would be for the government to bring forward a workforce plan for the NHS and social care. It hasn’t done so. What the legislation can do though, is try and set out the consequences for the NHS and for social care by making sure that there are readily available public forecasts of the need for staff and the supply of staff so people can make that comparison between where the pressures are and what needs to be done about it, and that you can legislate for. A number of organisations like ours are recommending that that does go into the bill.

SA:                  And Ruth you’ve had experience of (inaudible 00.09.29) reform and managing NHS services. Where is the connective tissue between what the bill is trying to achieve and the problems that local staff are facing?

RC:                  I guess the connection between the two is here is an opportunity to place proper authority at the right level for the nature of the leadership and change that you’ve got in front of you. So, whether that’s supporting clinical teams, whether it’s supporting individual organisations to shape their strategy in response to local needs, whether it’s about supporting people in a particular place and community to bring together healthcare organisations, voluntary sectors, social care, wider public sector organisations, to think about the needs of that population and to have their authority in that place reinforced rather than undermined. And where necessary, and sometimes it is necessary, to offer the opportunity to centralise some decisions for larger populations, for example around specialist services. I think this bill provides an opportunity to do that, to place clear authority at the right level. And that should be local wherever possible. So, the more local, the better, only where necessary should you bring organisations and larger structures together to make decisions that only, you know, bigger populations can justify. So, I see it as providing an opportunity for good leaders to intervene more effectively. It won’t do it of itself.

SA:                  I’m really taken with this highlighting of leadership, which is something we’ll come back to when we talk about implementing the bill. But the overall sense is that legislation can play a role in changing the rules of the game and putting collaboration more at the heart. But if things are actually going to change, it will come down to leadership and implementation.

Now we’ve been talking about the current bill and its primary aim to integrate services and make them more co-ordinated, but the Secretary of State, Sajid Javid, recently announced plans for a white paper that will outline the government’s further proposals on integration. And I know talking to people in the service, this has been really confusing for people. So, Richard, how do you see these two things fitting together, the new white paper that’s being proposed. What will it have that isn’t already in the bill?

RM:                 Well, if passing a major piece of legislation and then having a white paper that seems to also deal with the same issues seems confusing. I think it’s probably because it is. What we’re hoping is that the bill will deal with some of the core structures, the organisations, the powers that those organisations have. And the integration white paper will try and set out more about how this will work, may produce some innovations about the way that money may flow around the system. And some of that has been slightly undercooked in the bill. It’s very technocratic, often doesn’t really set out its own stool and so slightly oddly will have an integration white paper that will follow it, that will try and do some of that. I think the risk is for all people working in the NHS and in social care and elsewhere, is to engage a one set of reforms, slightly worrying that another set might be coming behind it. But we assume that whatever comes out in the integration white paper won’t need legislation. It will not be another changing of structures and a changing of requirements.

RC:                  I think they need to be really careful because most people in the NHS will expect to see the bill providing greater clarity. And if a white paper then comes along after that, to see that white paper is reinforcing and adding, you know, emphasis perhaps to what they’ve already worked hard over the last little while to understand. If there is any dissonance between the two, I think it will be really damaging because people will go right for that and say well look this is already what, you know, e.g. this is already watering down what we thought we were committed to. That sort of thing being said by leaders in the NHS would be very damaging. And anything that says this is actually watering it down or this is contradictory, it’s made it more complicated, or this is another overlay on top of what we’re already… any of that will result in the cynicism that I mentioned earlier being reinforced. I think it’s very important that it is about integration and that it does reinforce some of the key themes in the bill, not the other way around.

SA:                  And when you were running London, how would you have responded? What would you have said to your senior team? Would you have said look the bill comes in in April, let’s crack on and wait and see what the white paper says or would have you said let’s wait until we see the full package and just wait and see before we make any big moves?

RC:                  No, I think what I would have said is let’s make sure that we understand what our priorities are and that we’ve got commitment to that, that we’ve got clinical leadership at the back of that. Let’s make sure the evidence for what we’re doing is absolutely as rock solid as we can make it and then it doesn’t matter what the bill says or what anything else says because what we’ve done is solid and is in the interest of patients and the people who serve them. So, I think I would have tried to crack on, but would have taken the opportunity that I saw there of the bill, and I would have tried to make sure that the evidence for what we were doing was strong enough to withstand anything else. But there is a big but to this which is in a way the London job is easier than many others to do that for because it has a, sort of, natural coherence in itself anyway. And, you know, it’s a lot easier I think to deliver some of those sorts of changes in London than it is in other places. I don’t think it’s as easy as that if you’re in e.g. Cornwall.

SA:                  So, we are going to talk about implementation, but before we move on, a colleague asked what I thought was one of those questions that really cuts through. And he said you’re going to have two experts in the room who can go through the reforms, and they’ve looked at the bill with their expert eyes. What do they like and what don’t they like when they look at the bill? So, if you were looking at it as a whole, what elements immediately come to mind and say, yes, this is what we’ve been waiting for? And what elements come to mind when you say I have no idea why they put that in, what’s that there for?

RM:                 I think the good parts are really how promisive the bill is. So, it tries to leave as much room possible to local contacts, to local decisions. It doesn’t try and specify everything from what I call, which has been a longstanding problem. I think if there is a problem with the bill is that it doesn’t stop there, it adds quite a few other things in. Now some of those are because the government is short of time in parliament so there are things in there around the (inaudible 00.16.16) of water. There are things in there about hospital food. There is a whole ragbag of things at the end that make it quite a confusing bill for people to understand. And the lack still of commitments over workforce. We know the approach to workforce planning in this country hasn’t worked, and it hasn’t worked for quite some time. And this would have been a golden opportunity to try and put that on a firmer footing, and that hasn’t been taken.

SA:                  Great, thank you. And, you know, your point about limited parliamentary time does explain why it’s concatenated so many different elements of health policy that may not on the face of it sit together and at the same time, as you’ve said, makes it all the more (inaudible 00.16.58) that workforce is still a missed opportunity. Ruth.

RC:                  The things I like are trying to, you know, be serious about integration, the integration of care and the needs of patients. So, the point that somebody was making on the (inaudible 00.17.13) that you did about bringing things together around the needs of patients and seamless care. I think there is great opportunity for that. And I think the point I made about authority and accountability being much clearer than in the Lansley reforms, I also really like that as an opportunity. In a way, it’s not so much things that I don’t like in there. The things that I’m worried about are the willingness to follow this through and make it real, and not compromise on some of the things that have been said about accountability at local level and not, you know, under pressure suck back control centrally. And I agree with Richard about the workforce point as well.

SA:                  So, we’ve spent a little bit of time talking about what the bill is and what it’s trying to achieve. Now let’s talk about how you make a success of it, how’s it going to be implemented well. As it stands, the timeline is for the bill to come into legal force on the 1st April 2022. Once the legislation is over the line, whether it ultimately succeeds or fails, will depend on local leaders and national leaders putting the intentions of the bill into action with the support of government.

So, we went back to ask Samira and Gabrielle for their thoughts on what needs to be considered as the system moves away from design and legislation into implementation.

GM:                 I do have more fears I think at the moment than I do positives because when you see new legislation, you see the changes that are different and that are scary. So, I’m worried about where the voices of children and young people will be heard, how children’s social care is going to fit in when it hasn’t been recognised yet. But I think those gaps leave opportunities to advocate. So, I think in that we’re bringing people together, hopefully as a result, because of the range of professionals that will be heard together, they will, yes, they’ll be allowed a voice for the populations that aren’t normally heard.

SO:                  The health and social care bill gives us a real opportunity with the development of integrated care. With the development of integrated care systems and a mandate to work across systems and to really deliver against health rather than focus just on one element of healthcare, which is the treatment. I think to do that we have the permission now to do that and the mandate to do that. How we do that and how we connect with our communities is the critical bit because the focus can be on the organisations, bringing organisations together or pulling budgets. Or it could be a completely different way of thinking based on people not structures, based on outcomes rather than activities and processes.

GM:                 I don’t think the bill will change anything unless we try to change the culture within centres based on the vision that this bill was written with, or at least the vision that I believe this bill was written with, which was to integrate services and build flexibility, and, kind of, create that care around people and for people unless new leads feel confident and really commit to the vision and we let the changes that we’re going to make in systems be owned by the staff. Because it’s no fun when someone comes in and tells you to do something, and, kind of, vaguely tells you how it is. The fun of it is discovering what it is that you want to change and what you’re passionate about.

SO:                  I suppose the key message is really to genuinely push for the idea that people do more when they decide for themselves. So, our job as a whole system is to create the space to enable for that to develop, to thrive, to grow and to begin to deliver. That’s our job, we are facilitators. ICSs, ICBs, ICPs are facilitators for that space.

SA:                  So, we’ve heard there from Samira and Gabrielle. And as they were speaking, I think two things popped into my head, the first is certainly when I talk about reform and new legislation, sometimes I talk about it as opportunity, transformation. And someone once said to me that for clinical staff what they’re thinking about is will I have a job at the end of this. Transformation can be a time of anxiety. It can be quite scary, so there is something about that.

And the second thing is, the sense of urgency. Because, again, it can feel like someone somewhere is drawing up a new plan for the health and care system and will unveil it at a staff presentation. And perhaps that’s not what we’re trying to do this time. Perhaps what the health and care system is trying to do is say whatever you were trying to do as a clinical team, as a local team, to make care better for your population and your patients, this will make it easier. And that’s what going with the grain of what the NHS is trying to do means.

So, let’s try and talk about how we make these reforms a success. And, Ruth, quite a broad question to open up, but once the law has been made, what do you think needs to happen if the intent behind it, the aim behind the legislation really is going to be achieved and the reforms are successful?

RC:                  So, my opinion would be first and foremost, you know, the key leadership roles that are going to be needed to be appointed to between now and next April and shortly thereafter are new jobs. They’re not the old job rebadged, they are new jobs, and they need to be described as such. And it needs to be clear what it is we’re looking for in terms of leaders. Their skills and experience, their behaviours, their values, and I think there is some hard choices to be made about those appointments. And I think we started that well, the Chief Executive roles were nationally advertised. People had to apply. A number of people saw that as applying for their own job. I saw it as applying for a different job, and a choice about whether those people applied or didn’t. And they certainly had a choice about whether they were appointed or not. And I think that theme needs to be followed through for leadership roles, difficult though it maybe in order to be clear that this, you know, we’re looking for something different. We’re looking for change. We’re looking for a different approach. So, that will take a bit of time and it will create some anxiety and it will create some loss because some people won’t be successful. But I think if we’re going to be serious about getting the right people into these roles to lead in the right way, to reflect some of the value points that were made earlier with your speakers, then it’s important to take the time to do that, difficult though it is. That might be unpopular right, but that is what I think needs to happen so that we’ve got people who are in no doubt about what’s required of them. And they’ve taken the role on expecting to work and operate in that way, and to be supported to do so.

SA:                  And we do have another review of NHS leadership led by General Sir Gordon Messenger. What would you be looking for from that review as sending a signal of the type of leadership, the type of behaviours that are needed to make a success of the health and care bill?

RM:                 I think there are a couple of things. I think there are a few things in there not to do. So, at the time that the review was first announced, there was a lot of really very old style talk about removing Chief Executives who didn’t manage waiting times, and that really is the old system speaking. That it’s one organisation’s fault, and it’s the fault of the one leader in it. And, you know, some people go into organisations that are struggling only to find themselves being removed quite quickly even though they were put in there in the first place to try and turn things around, but never given the time. So, it was a very old-fashioned way of thinking that I think hasn’t really worked. That’s not saying you should be soft on performance at senior level. What I think we want it to do is to really herald that more collaborative system way of working and to try and find in that route that that doesn’t mean to say we’re governed by committee or that the system is tolerant when things begin to go wrong, to try and find that right balance. But there have been a lot of reviews of leadership in the NHS. There have been a lot of reviews of culture in the NHS and they all tend to point the same way. The tricky thing here is to, again, to be able to say the right things, but actually do it. To work out perhaps why some of those previous reviews spoken about, toxic cultures and a very, very top down system, haven’t managed to turn the dial.

SA:                  And Ruth what’s your perspective on the latest leadership review, having seen a few come and go before?

RC:                  I’ve seen several come and go and I’ve been involved in some. And the fact is there is no simple solution, to my mind anyway that somebody, as it were, from outside can come and take a quick look and find some magic solution. If such magic were available, there is plenty of very clever able people within the NHS, they would have seen it and championed it. So, there isn’t a quick solution. Now that said, I think that somebody able from outside, with the right support and engagement of leaders within the NHS, can indeed come up with some recommendations to put in front of politicians that might have some merit and might have some clout. But ultimately, to be honest, I would not put my faith in an external review. I certainly wouldn’t if I was leading within the NHS now sit back and think well I’ll wait for this review to give me the answer to the problems that are in front of my nose. So, I see it as maybe adding something to what’s already going on. Adding emphasis. Adding some insight maybe. But the solution to the problems with the NHS will not be found by an external review in my opinion.

SA:                  So, let’s start to finish the discussion, and I don’t want to undermine everything we’ve just said, but the previous 2012 reforms, they did start to unravel remarkably quickly, and there were workarounds that sprung up. Do you think that legislation does really matter? Do you think it can make a difference and play an important role in how health and care is delivered?

RM:                 I think, yes, it certainly can. I think the tricky thing often is that people exaggerate would it can do, is the challenge. So, many of the conversations we’re in now, are with people saying well I want to mandate this person on to the board. I want to mandate the NHS to do this. I want to mandate the NHS to do that. And you, kind of, think oh calm down. If they haven’t done it already, it’s because they either don’t want to or can’t. And particularly if it’s can’t, the shouting at people even louder won’t make them any more able to do it. So, I think there is a tendency to exaggerate the impact of legislation,  but it’s also true from what happened after 2012 that it can create tensions. You can put the law in a place, particularly around things (inaudible 00.28.28) would be one that you set against people locally rather than try and bring you together. And, again, actually, to use 2012, many people still think that bringing local government into public health was a good idea. And, so, that was a positive change brought about by 2012, and the greater independence of NHS England. Well, that was another product of 2012. So, we tend to view it as a mitigated disaster forgetting in fact that it did put a few ticks in boxes that people do think should be enduring strength and would rather like to keep going forward. The problem, as I say, with legislation is to exaggerate what it can do and, you know, to some extent at the moment for people working in the service, I really doubt they’re giving more than a moment’s thought to the legislation. They’re thinking about rising demand in the service, waiting times, the inability to give good care to patients, and that’s what patients are worried about too. And, so, you can get caught up in a slightly Whitehall focused conversation. The bit about the legislation is that it should hopefully last at least another decade. And, so, even if at the moment it doesn’t make much difference this winter or even next winter, it could matter increasingly after that.

SA:                  Well, I think that’s all we’ve got time for today. So, thank you to both Dame Ruth and to Richard for joining me. You can find the show notes for this episode and all our previous episodes at www.kingsfund.org.uk/kfpodcast. And you can get in touch with us via Twitter at The King’s Fund account. Thank you to our podcast team for this episode. That’s Jonathan Homes, Sharon Jones, Emma Sheffield, and Sarah Murphy. And don’t forget to subscribe, share, rate and review this episode. And, of course, thank you for listening. We hope you can join us for the next episode.