A good day to bury a significant piece of legislation?

A good day to bury a significant piece of legislation? Amid the furore (at least in health policy circles) of the Competition Commission’s decision to refuse themerger of trusts in Bournemouth and Poole, it may have passed people by that some potentially very significant changes to the current failure regime have been approved as part of the Care Bill.

These amendments enable the Secretary of State to mandate service change across a whole health economy, not just within the trust subject to the failure regime. They also extend the currently challenging timeframe in which the Trust Special Administrator (TSA), appointed under the regime, has to develop the proposals. But perhaps the most significant amendments effectively remove two of Lansley’s tests for significant service change: the TSA proposals will not require public consultation or universal commissioner support. Many people have noted the urgent need for this type of service change in a relatively short timeframe, but the NHS has found it nigh on impossible to implement in many parts of the country so far.

The amendments come in part as a direct response to the experience from the first use of the failure regime for South London NHS Trust, where the local authority succeeded in a judicial review of the decision to downgrade neighbouring Lewisham Hospital. In the course of the Lords’ debate on the amendments, Lord Howe said, ‘NHS trusts, foundations trusts and other providers don’t exist in isolation from each other. They are part of a complex, inter-dependent local health care economy. Issues of clinical and financial sustainability nearly always cross organisational boundaries.' It is hard to argue with this logic. However, the consequence of the proposed changes is that, despite explicit statements in the original legislation that the failure regime should not be used as a backdoor route to service reconfiguration, it risks becoming precisely that. And a Health and Social Care Act that sought to keep politicians at arm’s-length from the day-to-day running of health services and to put local clinical commissioners at the heart of decision-making, now gives the Secretary of State more direct control over local service configuration and potentially disenfranchises local commissioners as well as the local population.

The amendments also leave many unanswered questions: could service change be enforced on unwilling providers and, if so, what does that mean for the autonomy of foundation trust boards? What would happen if local commissioners do not choose to purchase the reorganised services? Could the competition authorities be the only check and balance left in the system? What happens if the competition authorities block proposals supported by the TSA and the Secretary of State?

Any discussion of failure and the role of the special administrator brings to the fore the dilemmas all system leaders face in this area: implementing legislation that unblocks much-needed service developments but could lose support from commissioners, clinicians and the public, potentially undermining efforts to create a less centrally-controlled health system.

While it is clear that the failure regime is only intended to be enacted in extreme circumstances and where other attempts at reconfiguration have failed, the tension between central direction on the one hand and a competition-led approach on the other is very hard to reconcile.

This blog was co-authored by Candace Imison, Acting Director of Policy at The King's Fund.