News and Comment

“The NHS belongs to the people” states the NHS Constitution, but Clause 119 of the Care Bill calls this into question

Tuesday 11 March 2014


This afternoon, MPs will again debate the Care Bill, and Clause 119 is the focus. (This arcane clause was previously Clause 118, for those who have been following the debates for several months – “If you can’t convince them, confuse them,” said President Harry S Truman.)

With the House of Commons rejecting earlier amendments from the Lords, the controversial clause had appeared to be put to bed, but further debate and possible cross-party rebellion is expected.

So I thought I’d reissue – and update – some of my earlier thoughts on the implications of Clause 119. 

OPM has worked hard to ensure patients and the public have a voice wherever major healthcare service changes are proposed. That’s why we’re concerned about the Clause 119 in the Care Bill. The whole narrative around why the NHS needs to change, and how, is at stake. The clause controversially and directly challenges the principles and values outlined in the NHS Constitution. “The NHS belongs to the people” – but will it continue to do so?

The bill will debated again this afternoon in the House of Commons. A straightforward reading of its language obscures the full significance of the changes should they be enacted. Why should we care? Because in the instance of financially failing acute hospitals, Clause 119 takes the power for local healthcare decisions away from clinical commissioners and the public they serve, putting it back squarely in the hands of a centralised and locally unaccountable third party – Trust Special Administrators appointed by the Secretary of State.

MPs should pay heed, for these new powers are fraught with danger. Clause 119 prioritises financially-driven solutions to health system failures, something which Robert Francis warned about in his landmark report on Mid Staffordshire NHS Foundation Trust. It enables the TSA to reconfigure services across whole health economies – creating winners and losers and potentially compromising patient care in order to create financial balance.

The clause also renders absurd the strategic planning efforts that have exercised Clinical Commissioning Groups over the past several months. For why bother setting out plans for improving local health services (both 2-year and 5-year plans) if an unaccountable administrator can unravel them in 40 days?

If I’ve learned one thing about reconfiguring local hospital services, it is that the process can be lengthy, laborious and full of setbacks. But handing the process over to an unaccountable third party, putting arbitrary time limits on the process, and disregarding both clinical expertise and the will of local people is unlikely to produce satisfactory outcomes.

Areas that have succeeded in reconfiguring services are few and far between, but they offer some helpful lessons about what it takes for successful results. A few examples come to mind: London’s reconfiguration of stroke services and Manchester’s “Making it Better” reconfiguration of maternity, neonatal and paediatric services. Their success stories have several important characteristics in common:

  • consensus around a clinical case for change – to improve the quality and safety of healthcare;
  • strong and consistent clinical leadership – for proposal development and during implementation;
  • political support locally – which takes considerable time to develop; and
  • genuine engagement of patients and the public – whether for consultation purposes or service re-design.

None of these factors is supported by the proposals in the Care Bill. In fact, they would be over-ridden quite easily by the TSA. Never mind that focusing on financial sustainability might limit patients’ access to care, adversely affect the quality and nature of local healthcare services, and produce greater health inequalities among vulnerable patient groups. Unfortunately, we cannot know the full impact of TSA-directed changes if local people aren’t involved in the decision-making.

As Clause 119 is debated today, MPs should re-read the NHS Constitution, particularly the seven key principles intended “to guide the NHS in all that it does”. If the NHS is to “put patients at the heart of everything it does” and to remain “accountable to the public, communities and patients”, these legislative proposals for addressing financially failing healthcare trusts need fundamental re-thinking.