The Health and Care Bill: six key questions

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Part of Our work on the legislative agenda for health and care reform

On 6 July 2021, the Health and Care Bill was published, setting out key legislative proposals to reform the delivery and organisation of health services in England, to promote more joined-up services and to ensure more of a focus on improving health rather than simply providing health care services.

The purpose of the Bill is to establish a legislative framework that supports collaboration rather than competition and many of its proposals have been informed by the NHS’s recommendations. The Bill also contains new powers for the Secretary of State over the health and care system, and targeted changes to public health, social care, and quality and safety matters. The Bill will be debated in parliament throughout autumn and winter 2021 and is expected to be passed in time for changes to come into effect in April 2022. Any Bill relating to the NHS can attract controversy, and this one is no different. In this long read, we attempt to respond to some of the most frequently asked questions circulating so far, responding to the Bill as it was first published. 

What will the new system look like?

Integrated care systems (ICSs) are partnerships that bring providers and commissioners of NHS services across a geographical area together with local authorities and other local partners to collectively plan health and care services to meet the needs of their local population. The Health and Care Bill introduces two-part statutory ICSs, comprised of an integrated care board (ICB), responsible for NHS strategic planning and allocation decisions, and an integrated care partnership (ICP), responsible for bringing together a wider set of system partners to develop a plan to address the broader health, public health and social care needs of the local population. 

However, a key premise of ICS policy is that much of the activity to integrate care and improve population health will be driven by commissioners and providers collaborating over smaller geographies within ICSs, often referred to as ‘places’, and through teams delivering services working together on even smaller footprints, usually referred to as ‘neighbourhoods’. 

1. Is the Bill a top–down reorganisation?

Long answer

The Bill does propose a substantial change in how the NHS in England is organised. Clinical commissioning groups, which have been the primary budget holders for NHS services since 2013, will be abolished. In their place, ICBs will be established as ICSs are put on a statutory footing to support multi-agency planning and delivery of health and care services. However, the context and background to these changes is important.

Integrated care systems (ICSs) – geographical partnerships of health and care organisations – are the latest in a long line of initiatives that aim to drive integration in line with the NHS Long Term Plan. Progress to date has been despite, not because of, the current legislative framework, which promotes competition between organisations, rather than collaboration across them.

The clauses relating to integration in the Bill build on the changes set out in the NHS Long Term Plan and are closely aligned to the recommendations made by NHS England and NHS Improvement in November 2020 and in February 2021, following a period of engagement with health and care leaders. Moreover, they seek to embed and accelerate the collaboration between NHS and other partners that ICSs have been fostering and was accelerated during the response to the Covid-19 pandemic. Many health and care leaders emerged from the initial stages of the pandemic with renewed conviction about the benefits of collaboration and a determination to keep hold of and build on the progress made.

In line with the NHS’s own recommendations, the Bill also avoids mandating a one-size-fits-all approach to local arrangements. In particular, there is a permissive approach to arrangements underneath the system level, such as at place, to push forward local integration. This is necessary to ensure that places have the freedom to respond to the needs of their local populations, rather than following a statutory approach dictated by the top. 

2. Will the Bill lead to greater involvement of the private sector in delivering and planning clinical services?

Long answer

Independent sector organisations have long played a role in delivering health care services within the NHS, with services such as dentistry, optical care and community pharmacy being provided by the private sector for decades, and most GP practices are private partnerships

It was argued that the Health and Social Care Act 2012 would lead to an increase in the number of contracts awarded to private providers. However, there is no evidence that, even within the competitive framework established by the 2012 Act, widespread privatisation of services has taken place over recent years.

Despite this, critics of the current Bill fear that private sector involvement in delivering clinical services will increase due to changes to procurement rules, the ability for private providers to hold seats on integrated care boards (ICBs) and potential conflict of interests in the awarding of contracts. 

The changes to how clinical services are procured sit within a wider package of reforms that aims to place collaboration, rather than competition, at the heart of how health care services are organised. Yet there are concerns that these changes, particularly where new services are being commissioned or services are being substantially changed, would allow contracts to be awarded to new providers without sufficient scrutiny, opening the door to private providers. In practice, though, the changes are framed by a duty on commissioners to act in the best interests of patients, taxpayers and their local populations, and will be informed by a new NHS provider selection regime, which is being developed by NHS England to support commissioning organisations and will include safeguards such as transparency expectations. 

A greater risk of the changes to competitive tendering is that existing contracts are regularly rolled over to the incumbent provider, with little opportunity for alternative providers to come forward. We have argued that there should be measures to mitigate this risk and encourage a diversity of providers, including voluntary and community sector (VCS) organisations, which play a vital role in delivering health and care services. 

There has also been concern expressed about the potential for private providers to hold seats on ICBs, the main local planning and funding body for NHS services. The legislation does allow ICBs to choose their own members, and therefore, where major local services – for example, community health services – are run by a private company, that company may be invited to be a member. However, the same is true if a major service was delivered by a VCS organisation.

The Bill mandates that ICB members must include representation from local NHS providers, primary care services, local authorities and independent non-executive directors and all such members will potentially be involved in procurement decisions about clinical services. Crucially, the ICB model proposes that decisions about who delivers services are informed by a blend of perspectives, although there is a risk that one or two perspectives dominate. It is right, therefore, that the Bill includes safeguards, for example, decisions of the board and its committees must be made transparently with meetings in public and papers published. Overall, it is unlikely that the changes in the Bill will result in a substantial change in the private sector’s involvement in delivering NHS services. 

3. Will the Bill enable ministers to interfere in the day-to-day running of the NHS?

Long answer

The Bill creates scope for greater political interference in the day-to-day decision-making of the NHS in several respects. 

The involvement of the Secretary of State in local service reconfigurations would significantly increase. Reconfiguration describes the management of service change in the NHS that has an impact on patients. Currently, most service changes are delivered and implemented locally, developed by commissioners in consultation with clinicians and other system partners. 

Today, contested significant service changes can be referred to the Independent Reconfiguration Panel, where experts review a proposal and make recommendations. The Independent Reconfiguration Panel has made decisions on more than 80 big cases since it was established in 2003, for example, on the reorganisation of stroke services in London

The proposals in the Bill would require the Secretary of State to be notified of all changes, no matter how large or small, temporary or permanent. This would include, for example, even emergency changes such as the response to the flooding of Whipps Cross Hospital in July 2021. This could mean any service change in the NHS could land on the Secretary of State’s desk, risking a decision-making log jam, placing a significant burden on local and national NHS bodies awaiting decisions – and delaying changes to services that clinicians have already concluded would benefit patients. The intention to use these powers where there may be a temporary change to manage immediate operational pressures would dramatically reduce the ability of the NHS to manage its services day to day.

Beyond reconfigurations, the Secretary of State would also have a general power to direct NHS England beyond the objectives set out in the NHS Mandate, the annual list of priorities that the Department of Health and Social Care issues to NHS England and for which NHS England is accountable. This additional power is said to recognise the increased range of functions NHS England holds following its merger with NHS Improvement, which the Bill formalises. Some limits are identified on how this new power could be used, but to protect the operational and clinical independence of NHS England, we have argued that much more specificity should be provided on the scope of these powers, the circumstances in which they might be used and the oversight and scrutiny in place to review how they are used.

Taken together, affording such broad powers to the Secretary of State is at odds with the stated intent of the reforms to reduce bureaucracy and empower local decision-making. They instead risk increasing ministerial involvement in operational issues and seeing decisions to improve services politicised and delayed.

4. Where will the power lie within ICSs?

Long answer

The Bill’s integration proposals set out how ICSs will be given statutory footing, including details on how they will plan and make decisions. ICSs will be led by two key bodies – an integrated care board (ICB) and integrated care partnership (ICP). 

ICBs will take on the NHS planning role currently held by NHS clinical commissioning groups (CCGs) and some functions from NHS England. ICB membership will include, at minimum, a chair, chief executive and representatives from local NHS providers, primary care services and local authorities. In consultation with local system partners, ICBs will produce a five-year forward plan for how NHS services will be delivered to meet local needs (with the plan refreshed annually). ICBs will be accountable to NHS England for local services’ operational and financial performance. 

Integrated care partnerships (ICPs) will sit alongside ICBs as a joint committee focusing on broader health and care services. An ICP will include representatives from all the local authorities in its geography and representation from the ICB; it can also include representatives from other partners such as public health teams, housing services and the VCS sector. ICPs will be responsible for developing an integrated care strategy, which sets out how the needs of the local population will be met (informed by local authorities’ joint strategic needs assessments).   

Together, ICBs and ICPs will set the strategic direction for systems, identifying priorities and, in the ICB’s case, allocating resources within the NHS to deliver those. How these two bodies interact will be key to where power lies within ICSs and the legislation goes some way to defining this relationship by including a general duty on the ICB to pay regard to the integrated care strategy produced by the ICP. However, there is not a specific requirement for the ICB’s ‘forward plan’ to enact the integrated care strategy. A key determinant of how power is exercised within ICSs will be the behaviours, cultures, and relationships that leaders seek to foster. A mindset of shared endeavour and collaboration in the service of local populations will be critical to ensuring that ICSs operate as true partnerships of equals. 

Additionally, there is an expectation that ICBs and ICPs will need to work with multi-agency partnerships at ‘place’ level, which will lead on some key elements of integration and influencing the wider determinants of health. 

Yet there are risks. In particular, the extent of ICPs’ influence on ICBs’ agendas is open to question given ICBs’ control over, and accountability for, substantial NHS resources. As ICSs implement these new structures over the coming months and years it will become clearer how ICBs and ICPs are relating to each other in practice. Previous attempts to drive integration, for example, the early development of sustainability and transformation plans, have shown that a narrow focus on NHS priorities – whether real or perceived – can hamper the cause of system working. NHS England and its regional teams will have a role to play in understanding how these dynamics develop and shape ICSs' priorities.

5. Will the Bill make any difference to patients?

Long answer

It is often only when people, and their carers, use health and social care services that they discover that rather than there being a single integrated system of care, services are provided by a patchwork of organisations that sometimes work together well but sometimes, unfortunately, do not. 

Increasingly, people have multiple health and care issues and need support from several different services at the same time. Services therefore need to work together to provide joined-up, co-ordinated care that meets individuals’ needs in a flexible, person-centred way. 

However, the NHS is currently organised around separate organisations working autonomously, and this is reflected in the way that services are contracted and paid for and the way that providers and commissioners are inspected and regulated. This makes it difficult to join up services.

The changes proposed in the Bill look to address this through supporting ICSs and other partnership structures that enable organisations to come together to plan and deliver services collaboratively. The new partnership structures in the Bill present an opportunity to improve the health of communities and individuals, with NHS organisations working closely with local authorities, VCS organisations and communities themselves. 

National Voices, Age UK, the Richmond Group of Charities and The King’s Fund recently came together, with input from a range of health sector partners, to produce a shared vision of what the new reforms could achieve. This joint vision sets out the benefits that could come about if the reforms succeed in creating an environment where it is easier for health and care organisations of all kinds to pull together in a common direction. 

The vision is one in which NHS organisations, local authorities, social care providers, VCS organisations, community leaders and others work more closely together to influence the wider factors that shape health and wellbeing. Teams providing local services would be supported to work collaboratively to provide joined-up, co-ordinated care. And local organisations would collectively ensure that people working in health and care are well supported and can use their skills to greatest effect, whichever part of the system they work in. 

Overall, however, legislation can only achieve so much by establishing a framework that allows services to collaborate to better meet patients’ needs. Tangible differences in patients’ experiences will depend on how local organisations, leaders and clinical teams implement these changes. It will be important for services to be afforded time to capitalise on the opportunities the Bill presents.

6. Will the Bill place the health and care system on the right footing to tackle the big challenges it currently faces?

Long answer

The Bill is an important step forward for integration, helping health and care organisations to work together to deliver more integrated care to better support the increasing number of people who rely on support from multiple different services.  

This focus on integration also has the potential to help services to have an impact on the deep health inequalities that exist between different population groups and areas of England. These inequalities cannot be addressed by the NHS alone because many drivers of health lie outside health care. The ICS model of partnership working across NHS organisations, local government and VCS organisations has the potential to make a tangible difference. 

Beyond this, there are several other challenges facing the health and care system that will not be addressed by the measures set out in the Bill. The workforce across the NHS and social care in England is in crisis, with high levels of stress, absenteeism and turnover.  

Although the Bill does contain measures relating to workforce, they are weak, and we have argued that an amendment is needed to mandate an arm’s length body to publish regular, independently verified projections of future demand and supply of the health and social care workforce in England. This would be a powerful signal of intent. However, this must go hand in hand with a fully funded workforce strategy that addresses staff shortages, boosts retention by improving working cultures and includes a renewed commitment to providing compassionate and inclusive leadership.

Similarly, the Bill falls far short of a meaningful commitment on social care, despite the inclusion of targeted measures on data collection and regulation. The current social care system is not fit for purpose and is failing the people who rely on it, with high levels of unmet need and providers struggling to deliver the quality of care that people have a right to expect. The Covid-19 pandemic has exacerbated many of these problems, increasing levels of unmet need and further destabilising an already fragile care provider market. The Prime Minister has been promising for more than two years that he would ‘fix’ social care – its absence from this Bill is therefore very disappointing.

Further reading

Comments

Pearl Baker

Position
Carer/Advocate,
Organisation
Independent
Comment date
18 September 2021

The success of 'integration' is about knowing what is not working:? Patients, Carer's, Support worker need to know what to expect from a system that is supposed to deliver a Patient Centred, Patient Choice, Holistic System of Health & Social Care, and 'integrated'. All Patients should be given information on 'integration' and what it means, a 'FEEDBACK' form is essential if it is to succeed. The 'Feedback' form should be returned to a central 'locality' Hub, it will identify success or failure.

PHE should be involved in advertising the new system of 'integration' including a POSTER campaign.

There are many 'strands' to 'integration' currently it comes down to education, training, and knowledge on your Rights;

Who within an 'integrated' Health & Social Care will inform you of Welfare Benefits, Personal Budget, Direct Payment. PIP, ESA, many Patients have no idea of their entitlements and how to apply.

Independent Well Trained Advocates should be included in the Process of 'Integration' and your entitlements.

I am concerned with the shortage of GPs and Social Workers, and how difficult it is to get an Appointment.

jean

Position
carer in adult social care,
Organisation
independent
Comment date
17 September 2021

What still isn't clear is how this interface happens between NHS and councils. this is the interface for social care. If you don't provide more funding to councils nothing will change.

The pandemic has caused huge financial damage to local councils, this will (and is) leading to huge cuts in care packages. Lest we forget: the average 'full time care package' is 2 and 1/2 hours - for 4 visits in a day. A carer will receive approx £9.50 an hour - if they are lucky. Care packages mean that carers are often not working 'full' hours, and will receive token travel payments. In my own experience - if I have to pay for parking- I can be earning as little as £3.20 an hour. I have had schedules where I am meant to be at the next client 15 minutes before the leaving the person I am attending to, with no travel time allowed in between.

Spending huge amounts of money re-organising the NHS without really addressing the issues with the funding to Councils will do nothing for Social Care- and social care is almost completely privatised. the work force of Social Care is larger than that of the NHS and your mentions of it are derisory.

over looked.

Brooksy

Position
Mental Capacity Act Facilitator,
Organisation
NHS
Comment date
13 September 2021

I would like to see some focus on how you see the ICS impacting on the implementation of the Liberty Protection Safeguards and is there any focus that professionals should be giving to it, in terms of publicity, in also providing information to the general public, which wasn't really evident in the implementation of the Mental Capacity Act when it first came fully into force in October 2007.
How do you envisage this taking place in an ideal world?

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