Responding to Professor McKee, the Secretary of State says “it is a myth these changes could have been achieved without legislation.” However, many think he is mistaken.

First, he says, “the rights to determine how the NHS’ budget is spent do not currently sit with doctors and nurses…” Yes, but this has nothing to do with the NHS Act 2006. The problem is the regulations governing membership of NHS boards. At present, they require only one member of the board to be a doctor. We may all agree this is wrong, but the remedy is to change the regulations, so that “a majority” or “all” NHS board members are doctors. No need to overhaul the entire structure of the NHS to do that.

Second, Mr Lansley says: “In law, the secretary of state is free to intervene in virtually every decision best left to doctors and nurses... [After the reforms] I will not be able to micromanage the daily decisions that should be left to those who are clinically qualified.”

Secretaries of State are always blamed for micromanagement. However, their legal powers under the NHS Act are delegated to PCTs. Although the question has never been tested in the NHS, case-law suggests that delegated powers are lost to the Secretary of State. Once the Secretary of State’s powers have been delegated to PCTs there is probably no statutory power to micromanage. Micromanagement is a problem of politics, not the NHS Act. The only exception to this principle is in the case of Secretary of State’s Directions. However, Directions are formal instructions normally issued to the NHS as a whole. Directions are not micromanagement tools. The remedy is to change the behaviour of the DH, not use micromanagement as a reason to overhaul the NHS Act.

Third, responding to concern about privatising NHS commissioning, the Secretary of State says that CCGs “will always be accountable for their commissioning decisions.” At present, PCTs are public bodies staffed by public employees with no private interests. We understand how they are accountable in judicial review. CCGs will be different, they will be public authorities staffed by GPs with private interests. Apart from patients, GPs also have interests in the viability of their practice, its profits and the commercial opportunities available. These are legitimate private interests which will be included amongst CCGs’ duties. Crucially, then how will CCG accountability differ from PCTs? Will they be subject to the “Nolan principles,” especially selflessness, ie that Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves…? This little discussed question lies at the heart of CCG accountability.

Cynics may suspect that the true motivation for the reforms is not improvement. It is to distance the Secretary of State from responsibility for a restless health service facing years of hardship.

Competing interests: None declared