Observations Health and Social Care Bill

Why legislation is necessary for my health reforms

BMJ 2012; 344 doi: http://dx.doi.org/10.1136/bmj.e789 (Published 01 February 2012) Cite this as: BMJ 2012;344:e789
  1. Andrew Lansley, secretary of state for health, London

Andrew Lansley responds to Martin McKee’s recent BMJ article criticising the health bill

I read Martin McKee’s article “Does anyone understand the government’s plan for the NHS?” with interest (BMJ 2012;344:e399, doi:10.1136/bmj.e399). The NHS, of course, has never been the easiest of organisations to understand—most people I have met have never even heard of a primary care trust. But this government’s modernisation plans for the NHS can be summarised, most simply, in four ways.

Firstly, they will safeguard the NHS for the future—an NHS that remains free at the point of use, is funded from general taxation, and is based on need and not ability to pay.

Secondly, they will put patients first, by giving them more information and more control over the care they receive. What should be available to patients—and available to their doctors or other health professionals to discuss with them—are meaningful options about the care they can receive. For patients “no decision about me, without me” should be the norm.

Thirdly, they will focus the NHS on the overall results it delivers for patients. That is why we have recently launched the NHS Outcomes Framework (BMJ 2011;343:d8031, doi:10.1136/bmj.d8031), developed from the vision first set out under Labour by Ara Darzi about what a high quality NHS should deliver: safe, effective care, of which patients have a good experience.

Fourthly, they will give the public and NHS staff the power and the responsibility to make good this vision. For members of the public, that means giving a powerful role to their local councils to help shape the vision for NHS services in every local area. For doctors and nurses, it means giving them overall responsibility in each local area for the NHS budget. For organisations delivering care, it means giving them operational independence from ministers in Whitehall—allowing them to focus on the results they are delivering, rather than the latest central missive from government.

It is a myth that these changes could have been achieved without legislation. Nothing could be further from the truth. Legislation is what makes good the words of politicians. It is what establishes and defines the rights and responsibilities of various individuals and organisations.

The NHS currently has no legal obligation to improve continuously the quality of care. Legislation is needed for that. There is no legal duty to reduce health inequalities. That, too, needs to be rectified in legislation. Local councils have no role in developing the strategy for healthcare services in their local areas. That requires legislation. The rights to determine how the NHS’s budget is spent do not currently sit with doctors and nurses, the frontline staff who know how best to use it. That requires legislation to remedy it. In law the secretary of state is free to intervene in virtually every decision best left to doctors and nurses. That situation requires legislation to change it.

McKee argues that he doesn’t understand the problem the changes are trying to solve. Put simply: the problem is that frontline staff do not have the freedom to deliver care in the way they see best. Perfectly sound clinical decisions taken by doctors and nurses are routinely frustrated by a system that is not clinically led and where trust and power are not placed in the hands of those who treat patients every day. The relatively poor performance of the NHS in some areas—such as cancer survival and patients’ experience—is a symptom of this wider problem. As McKee argues correctly, the NHS performs well, on average, in other areas—but even this aggregated performance masks huge variation in the quality of care that patients receive in different areas of the country. The people who should have the responsibility and the powers to put this right are the doctors and nurses who work in the NHS. At present they don’t.

McKee argues that the rhetoric of our modernisation plans does not match the reality. He argues that commissioning will not be done by GPs but by private companies. He argues that commissioners will be required to increase the number of patients treated in private facilities. But neither of these is in the Health and Social Care Bill. On the first point, clinical commissioning groups will be statutory bodies. Like local councils, they can neither be bought nor sold, nor can their legal duties be delegated to any other organisation or individual—they will always be accountable for their commissioning decisions. On the second point, the legislation expressly forbids any policy that favours the private sector over the NHS sector. He also suggests that the franchising of the management of an NHS hospital to a private sector company represents the “privatisation” of the NHS. But the hospital in question remains within the NHS, it treats NHS patients free of charge, its assets remain publicly owned, and the staff who work there remain on NHS terms and conditions.

The passage of any legislation takes time. Given that context, decisions taken by ministers have to make do with old legislation while preparing for the new. It is true that the Health and Social Care Bill will make the NHS operationally independent from ministers, as McKee writes. But it is equally true that as the bill passes through parliament I have had to intervene on matters for which I am responsible under existing legislation. On outlawing the use of minimum waiting times, for example, I am legally the only individual charged with responding to the information and recommendations I was given. In the future, in this case, it would be the job of the regulator Monitor to protect patients’ interests. I will be able to intervene if someone makes a decision that puts the NHS in danger, but I will not be able to micromanage the daily decisions that should be left to those who are clinically qualified.

Finally, McKee asks why so much change can happen before the Health and Social Care Bill has passed into law. Once again, the answer is in existing legislation. There is nothing in the NHS Act today that prevents a government from passing notional control over the NHS’s budget to the frontline or from establishing a notionally independent body to oversee the design of NHS services. But legislation is required to give the NHS the confidence that we are resolute in our determination to see an NHS that is led by doctors and nurses and freed from political micromanagement. And it is also required to ensure, for example, that we give local councils the greater freedoms and powers that they need. That is why some important changes must wait for the passage of the bill.

Change in the NHS is challenging—a symptom of its inherent complexity and of the intensity with which it is debated. But, ultimately, the changes that the government is seeking are simple ones and are for a simple reason: to give the NHS the tools it needs to be, across every clinical area and geographical region, one of the best healthcare systems in the world.

Notes

Cite this as: BMJ 2012;344:e789