New legislation for the NHS – some thoughts.

Having published a couple of posts on Monday’s budget I thought it would be logical to follow them up with a discussion of the possibilities of any new health legislation that might get through parliament. The prospect of this being required was raised by the Prime Minister in June when she reiterated her belief – taken from the June 2017 Conservative Manifesto – that if the purchaser/provider split was getting in the way of patient care, the Government would legislate it away.

This remarkable manifesto said,

“We will hold NHS England’s leaders to account for delivering their plan to improve patient care. If the current legislative landscape is either slowing implementation or preventing clear national or local accountability, we will consult and make the necessary legislative changes. This includes the NHS’s own internal market, which can fail to act in the interests of patients and create costly bureaucracy. So we will review the operation of the internal market and in time for the start of the 2018 financial year, we will make non –legislative changes to remove barriers to the integration of care.”

Conservative Manifesto 2017 – Page 67

And, as I commented in September, this placed the 2017 Conservative Manifesto – so far as health structures are concerned – to the radical left of the 2017 Labour Manifesto.

No-one seemed to see that as being strange at the time. Nor do they do so today. And that must be because we live in such strange political times.

In June the PM invited the NHS to come forward with legislative ideas that they felt were needed to improve patient care. Therefore there are, within NHSE/I, people beavering away to come up with ideas for such legislation in response. This is useful, but in September I concluded that any legislation at the moment was unlikely.

“But the problem is that this is happening in the autumn of 2018. Parliament has just returned and because it is dominated by Brexit, the relationship between the parties whips offices and the individual power of MPs to pass legislation is a very odd one. The idea of coherent support for anything from inside one major party – let alone across two of them – just doesn’t look feasible. It looks to me that the House of Commons of the autumn of 2018 is probably the least likely of any Parliament for 50 years to get a consensus for legislation on anything.

So the idea is a good one. It would have helped the NHS move forward, but the timing is awful.”   

I was going to return to this issue, but the ever excellent Nick Timmins beat me to it last week with an extensive and excellent analysis published by the King’s Fund. This not only looks at the difficulties of any legislation getting through the current fractious parliament but goes into some detail about what the NHS needs to make it easier to create coordinated person-centred care.

This is really worth a read – not just for its analysis of the immediate possibilities of passing legislation, but also for its assessment of the steps that may be required to pass future legislation. If the Conservatives feel that the purchaser/provider split needs ending, then its likely that this will chime with activists in the Labour Party who will be looking to ‘repeal the Lansley Act’.

At some stage in the future it is likely that one of the two main political parties, which at the moment both want to pass similar legislation (but for different reasons), will have a majority big enough to do this. The main problem then will not be getting legislation through parliament, but preventing any new legislation from badly destabilising the NHS and its capacity to deliver services.

The last thing the NHS needs now is a ‘wholesale reorganisation’, and that is likely to still be the case in two, five, or ten years’ time. The NHS cannot afford to take two to three years where it is more concerned about internal organisation than it is about delivering healthcare.

Any government with a majority and in a position to pass such legislation will hopefully be very concerned about the everyday performance of the NHS in delivering healthcare. Any major reorganisation/disruption through legislation would cause problems for that government.

So the next legislation for the NHS will need a totally different approach than the usual. The ‘usual’ approach to legislation might be summarised as, “What structure do we want?” and, “Let’s have a very big Act to bring it about.”

This time the approach needs to be more along the lines of “What changes do we need and how do we introduce them in such a way as to have the smallest possible impact on the day-to-day running of the NHS.”

It’s a different way of thinking about legislation, but it is what is needed both now, and in the near future.