Big on inspiration, short on legislation – the 'quiet revolution' in the NHS
The crowds assembled at London’s Olympia exhibition centre were united by a desire for answers – a promise of a clear and well signposted path through the troubling turmoil ahead.
Clinicians of all grades, health managers, policy experts and journalists had gathered for a presentation entitled One Year On, from Plans to Partnerships, which intended to describe the process of driving STPs (sustainability and transformation partnerships) – 44 regional partnerships aimed at localising and integrating care – into more formal arrangements such as ACSs (accountable care systems), eventually able to take over sole responsibility for local healthcare.
But the three experts introduced to the audience by NHS England chair Malcolm Grant – who were all involved in leading or scrutinising the process in their area – stumbled when the line of questioning went beyond requiring a description of relationships being built and pathways redesigned.
The future is foggy
The question from the audience – at the UK Health Show last autumn – was simple: how will these new relationships be formalised and contracted? What will the governance arrangements be?
The response: ‘I don’t know,’ ‘it’s not my area of competence,’ and, from the third party, silence spoke volumes.
It was a moment that summed up the last 18 months in health policy so well: health leaders across the country have been talking with great vigour to packed rooms about the future, but often with remarkably little attention to the real – and often concerning – detail about what that future will look like and how it will work.
Phrases such as ‘don’t ask for permission, ask for forgiveness’ and promises to ‘blur the boundaries’ of current structures and legislation represent the stock vocabulary of the modernisers who are attempting to revolutionise the health service quietly while the looming figure of Brexit distracts politicians.
‘We have now entered a shadowy era of extra-legislative reform in which changes which might once have been thought to need white papers, primary legislation, statutory instruments, formal public consultation, policy guidance and the like are being enacted rapidly by administrative decree,’ Kieran Walshe, professor of health policy and management at Manchester Business School, says.
‘There are two sorts of change afoot – things which are in the Health and Social Care Act 2012 or other legislation, but which are simply being ignored or changed on the ground and new ideas which don’t figure anywhere in the Health and Social Care Act 2012 or other NHS legislation but which are being done anyway.’
So what is it that these quiet revolutionaries are actually planning in the NHS? And how does it relate to the structures and systems of the health service as outlined in former health secretary Andrew Lansley’s controversial act?
Well – Professor Walshe says – for a start the tariff-based payment systems set out in the act are increasingly being ignored or even neglected, and mergers between struggling trusts pushed through ‘without formal scrutiny’ from Monitor (now part of NHS Improvement).
But perhaps most significantly, new NHS programmes and projects and powerful drives towards integrated care are springing up across the country – bearing no similarities to the provisions drawn up by
And new care models – including 50 vanguard projects – have been running in England with a host of different aims under the broad desires to save money and shift care to the community, 44 STPs drawn up along geographical borders are looking at reorganising
care in their local areas and in a handful of those – perhaps around
15 – health leaders are either in the process of, or have, signed
memorandums of understanding in a bid to create ACSs.
While current efforts to change are public, they are generally taking
place in small areas or particular patches of the country deemed
more forward-thinking than others, often those with the STP plans
deemed the most successful. As a result the future design and
structure of the health service across the country is unclear.
For some, STPs are the natural vehicle for change and could become large ACSs (accountable care systems) holding the budget and responsibilities for the people in their areas.
On a local level
For Jim Mackey, outgoing chair of NHS Improvement localism is more important – and smaller ACOs might be the way forward.
At a King’s Fund conference he suggested three or four for each STP area could be the correct method.
It is also possible the idea of NHS care trusts – in all but name – will be revisited, with acute providers handed the reins for an entire area’s care.
In truth another model entirely might be the most successful way forward following ‘virtual integration’ which would see existing contractual arrangements – including general medical services and personal medical services – remaining in place but underpinned by an alliance between local organisations and providers. In this system collaboration would be king, rather than forcing major structural change.
One thing is clear: the competition, insularity and central control of the Lansley reforms is being chiselled away with every day.
Cutting red tape
The first question to ask is whether this matters: what are the concerns if the legal and governance structures of the NHS are being subverted?
For David Hunter, professor of health policy and management at the University of Durham, there’s an argument that this quiet process, ignoring the failed structures of the act, is a good process.
‘We could get bogged down dealing with the legislation,’ he says.
‘It’s sensible to bypass that and try to undermine it and subvert it. It’s interesting to approach things in that way.’
And for some – including Bruce Potter, chair of health law specialists Blake Potter – it makes perfect sense to act now and draft legislation to fit the new process later, particularly with the final makeup of a transformed NHS currently unclear.
‘From a lawyer’s point of view you would say I can draft something if you tell me what you want but we still don’t know which varieties we want and we don’t yet have the experience of working together to know what is really successful,’ he says. ‘I think going straight to a new structure could almost be as damaging as the single form we’ve got at the present.’
But – while some lawyers and academics are happy with the process – there are clear, and pressing, outstanding concerns surrounding such major change with such little political will or legislative might behind it.
And these are concerns the BMA has been raising for some time.
Professor Walshe rings several alarm bells.
He says: ‘We have legislation for a good reason – it sets out the legal powers and duties of NHS organisations and their constitutional accountabilities.
'If statutory organisations such as NHS trusts don’t fulfil their legislative responsibilities they can be held to account, through Parliament and its select committees, and through judicial review in the courts. In the current NHS, it is getting increasingly difficult to work out where accountability lies, who’s in charge, and whether organisations are doing their job properly.’
He adds: ‘There is a risk that powerful individuals – senior NHS leaders for example – are able to exert a lot of indirect influence behind the scenes, and that lobby groups and sectional interests take advantage of their advantageous access to politicians and senior leaders to get their own way.’
It’s a point with which Professor Hunter has sympathy. He adds: ‘These are dangers – you have devolution in the midst of all this. You’ve got ACOs that will ultimately throw up system leaders who may be quite prominent and high profile and need to be held accountable in some way locally as well as nationally. These things do need to be worked out and worked through and there are risks there but there are risks in any change of this nature.’
On top of those legislative and governance-based concerns questions stand regarding the statutory duties trust boards and organisations have – such as hitting performance targets, duties of care and financial accountability – and how those can be held if organisations are merged, autonomy given up and responsibilities shared.
And for Professor Walshe there’s another significant concern – transparency. ‘Decision making is likely to become less transparent,’ he says. ‘Public consultations, board meetings and formal, open ways to make decisions and to challenge them are likely to be replaced or subverted by backroom deals and horse-trading. The public processes of decision making may become post hoc rituals to confirm decisions taken out of the public eye.’
Engagement picture unclear
Despite the protestations of middle and senior leaders that public engagement has taken place, the process so far would seem to lend evidence to this point too. Healthwatch England, for one, was particularly critical during the early stages of the STP process, and a BMA study found that even many doctors hadn’t been involved.
The fundamental question behind all of these concerns is whether new legislation is needed now, later or never at all.
For Nils Christiansen, managing partner of DR Solicitors, it’s a pressing concern that will need to be addressed soon.
‘The new world isn’t envisaged in the Health and Social Care Act – it’s just not there, it’s not contemplated at all,’ he says. ‘You can live with it for a while but if the STPs or ACOs become the primary commissioners that is not what it says in the legislation.
'Ultimately it says that a CCG [clinical commissioning group] has responsibility for persons who are provided primary medical services by a member of the group. If they pass that responsibility to someone else what’s their job and under what power are the others who are doing it? Where are they getting their power from?’
He adds: ‘There’s enough leeway to enable these things to start up but at some point responsibility passes – and when it does you kind of run out of road.
‘Accountability is critical – that’s essentially what the legislation tries to do and the moment you’ve got an entity that doesn’t have accountability then problems will emerge. I think these new organisations will struggle to do what they set up to do unless they’re given the power to do it. They can’t legally contract to achieve their objective.’
It is a sentiment shared by NHS Improvement non-executive director and former director general for finance at the Department of Health Richard Douglas. ‘If the scale of the challenge wasn’t already tough enough we’ve got a legal, finance and governance infrastructure designed for an era of growth and competition focused on individuals,’ he told a King's Fund annual conference in November. ‘We’ve got the absolutely perfect design to do what we’re not trying to do any more. We need to confront that and face up to that.
‘There’s too much fear about those changes to structure – we need a payment system supporting new models of care, we need to incentivise things we want now not in the past and [we need] a governance structure and accountabilities that work across boundaries and a system of regulation that allows change at pace. That’s what we have to focus on in my organisation. Unless we can free up those things we’re not giving a fighting chance.’
He adds: ‘We’re locked into an absolute fear of changing anything post Lansley. If I get an electrician in to rewire the house and they don’t get it right I wouldn’t say let’s not do it again.’
Buckinghamshire, Oxfordshire and Berkshire West STP lead David Smith agrees and says a ‘hell of a lot of money’ is spent administering the contractual process currently being run by the NHS.
‘I’m not saying it should all be scrapped – but we are spending an awful lot of money between providers, commissioning support units, administrating a process. The ACSs are going to have to find a way through it – the answer I don’t know but it’s going to have to be worked through.’
But the legislation won’t be going anywhere, if senior figures are to be believed. NHS England chief executive Simon Stevens, the powers-that-be at NHS Improvement and health secretary Jeremy Hunt have all made that clear. The fly-by-the-seat-of-your-pants reorganisation in the shadows – without parliamentary backing – looks set to continue.
And – while the BMA will be lobbying for legislative change and a clear direction from national leaders – that could still pose a real concern.
BMA transformation lead and north-west GP David Wrigley says: ‘There’s no doubt that health services working more closely together is the right end goal but removing many aspects of the Health and Social Care Act as well as damaging competition legislation are crucial parts of that process.
'The NHS isn’t there to be toyed with, for its systems and structures to be blurred and fudged – it must be governed by clear legislation with proper accountability. For too long doctors and patients have been let down by politically motivated reorganisations working against the goals and values of the NHS. If we’re going to work more closely together then it must be done properly and with transparency, accountability and engagement of clinicians at the heart of progress.’
Who's in charge?
As Professor Walshe says: ‘It may be politically and managerially convenient at the moment – in the midst of the greatest financial crisis the NHS has ever seen – to ignore the legislative niceties of the Health and Social Care Act 2012, and just get on and do things that need to be done. But it is not without its risks. Imagine how a future public inquiry into a major failure in care like mid-Staffordshire might deal forensically with the muddled accountability and administrative complexity of the NHS today.
‘Sooner or later, the Government is going to have to get to grips with rewriting NHS legislation to reflect the realities of the NHS.’
Change is complex – and in the health service, a vast organisation of so many moving parts, that is always exaggerated. But many people are particularly concerned that the organisations driving the move toward accountable care are completely unaware of the difficulties that lie ahead, particularly in terms of complex contracting arrangements in a completely undecided governance and legal framework.
Patient representative in north London, and former senior property solicitor, Gaynor Lloyd says she had tried to press local health leaders on these concerns but they were ‘terribly vague’ in response.
She says: ‘What they are talking about is total fairyland. These things are so complicated. It took me months to deal with the heads of terms for one large supermarket in England. And we’re talking about complex risk sharing.
‘You have federations of GPs, individual GPs, whatever is left of commissioners and the current providers. Each one of these parcels of people need separate advice – they will be entering into a place-based contract to provide care for everyone.’
Ms Lloyd, who said the plan to ignore legislative change was ‘terrifying’, adds: ‘It feels like a pantomime world. Who is going to sign up [to] these contracts of ridiculous complexity, who is going to work them out, and where are the money calculations coming from?’
Among the most pressing worries when it comes to transformation in the health service is the spectre of private providers – the multinational corporations who have further designs on the health service.
While private involvement in the NHS is still relatively low, these concerns are not completely unfounded – particularly in the context of an NHS which has recently been sued by Virgin after the firm lost out on a contract in Surrey.
While the act stipulates that each area of the country must be covered by a CCG it is slightly unclear whether the current plans for a blurry, fudged process of change could leave ACSs or organisations needing to be put out to tender or vulnerable to private firms. That could, in theory, mean the health needs of an entire population being managed by a profit-making company, if these concerns are not mitigated.
‘The real risk in the future is that competition law could mean an ACO might be subject to procurement rules and that could leave English NHS services wide open to global corporations and further ownership of NHS contracts by large companies,’ Dr Wrigley says.
‘There is a very genuine legitimate worry that services could be run by profit-hungry commercial organisations and that would be a serious threat to the founding ethos and value system of the NHS. The need for legislative change ruling out commercial takeovers is vital to have a coordinated service free from those concerns.’
It is a concern Ms Lloyd feels strongly, too. She says: ‘It feels a bit like following the US model – it’s very scary.’
In the coming months the BMA will be looking in depth at these issues and producing a proposal for a future system. Sticking to the public service ethos of the NHS will be at its heart.
While transformation is a popular topic on the NHS agenda of the day, much of this talk of revolution and the enthusiasm for change from project managers, innovation leaders and strategy directors seems to forget the everyday reality of life in the NHS.
This year during winter the country’s hospitals have been under remarkable pressure, the likes of which have never been seen before. Every day targets are missed and staff work hours and hours of overtime just to keep services running. As Dr Wrigley says: ‘This latest reorganisation cannot be something for medical directors to think up on the hoof – it has to come with the space to think and the headroom for innovation that any real progress deserves. And that means resource and funding, too.’
Too busy to change
It is a need fully understood by Robin Sharp, former under-secretary of state in the foreign office and now a health campaigner in north London. He says: ‘We all accept things must change and health needs to change but all the frontline practitioners are hands on trying to cope with overload and they are not in a position to understand complicated legal and contractual issues – if this isn’t understood it could lead to disaster.
‘My background is working in Whitehall and my experience is that any major structural change involving different ways of thinking needs to be done with significant financial headroom available – you don’t do it when you are in a corner.’
While conferences, events and workshops explaining progress and outlining visions are useful in many ways, the simple truth is that talk is cheap. If transformation is to succeed it needs genuine direction from the Government and national health leaders and it needs genuine involvement from patients and clinicians.
A real plan is the first item on the agenda and legislation should come soon after. Legislation must be followed by funding and funding followed by the headroom for innovation.
It may be an ambitious checklist but the NHS has been an ambitious project from birth to its 70th anniversary. And that spirit is needed now, more than ever.
A very English revolution
Healthcare in England is going to change radically, if Government rhetoric is to be believed, but what it will look like is anyone’s guess at this stage. BMA senior staff writer Peter Blackburn attempts to piece together the puzzle
Five years ago the chief executives of hospital trusts, local authorities and NHS organisations across the country received a letter promising a revolution in English healthcare.
Then health secretary Andrew Lansley, in the thick of driving through a health and social care bill which he hoped would bear his name and secure his place in political history, told local leaders his reorganisation would cut costs and improve outcomes – with a ‘framework of choice and competition’ at the heart of the proposals.
More than 200 clinical commissioning groups were set up, Government abdicated responsibility for performance and a vast internal market bureaucracy for tendering contracts was created.
The reorganisation was deeply unpopular from the outset. The BMA and Royal College of Nursing declared votes of no confidence in Lansley and the political process, and resulting policy, were called a ‘car crash’ by commentators such as Nicholas Timmins.
And in hindsight the health service created by the 2012 health and social care act looks even worse than it looked at first reading of the legislation. These vast changes failed drastically – particularly in the chaotic context of the time.
A vicious combination of austerity politics and rocketing demands on the health service combined with the vast costs of preserving the internal market, the unnecessary division – and competition – between providers and commissioners to create a perfect mess. The result is a health service in real difficulty; strangled by a lack of resources, kept afloat largely by the committed staff slogging away on the frontline.
And this is the backdrop for the latest revolution in health and care. This time it is not being driven by political ideology or desire to create a legacy but by starvation and desperation. The health service cannot survive in its current circumstances unless it changes.
This revolution will be a bottom-up, largely quiet revolution. There will be no grand acts passing through Parliament or political peacocking.
Whether successful or not the changes will be driven by local clinicians and managers – under the watchful eyes of the ever-more collaborative, or indeed duplicative, duo of NHS England and NHS Improvement. Providers will become big beasts operating several hospitals, with the intention of spreading costs and good practice.
Commissioners will merge with like-minded organisations, eventually forming tiers of accountable care organisations and systems – and, ideally, local and regional solutions to local and regional problems will be found. None of this will be triggered – or underpinned by legislative change, despite the process going completely against the structures enshrined by the 2012 act.
In many ways this quiet revolution is a necessary antidote for the ailing NHS – a positive response to challenge and crisis – but the manner and the circumstances in which it is being carried out do lead to concerns and important questions.
No answer in sight
Where will accountability lie in a system which has no proper governance and no parliamentary backing? How can postcode lotteries and variation be avoided in such a decentralised direction of travel? How are clinicians to be central to redesigning services in the manner they are most needed – when many felt completely left out of the STPs (sustainability and transformation partnerships) process?
One of the fundamental questions, too, is just what exactly these new accountable care structures will look like.
Anyone who attends health service board meetings and conferences will know that there is no clear answer to this question – even in the hallowed halls of Skipton House or Richmond House. It may be that STPs in some areas become intermediate tiers of watchful management with several accountable care organisations covering smaller areas created.
Master of reality
It may be that STPs develop into fully functioning accountable care systems with responsibility for a large footprint. The reality may be a mixture of the two or something else entirely, but what is clear is that this revolution is one learned on the job.
And last, but not least, it is worth asking whether any of these dreams can be truly realised without the political will and crucially the proper funding needed to give the headroom for local leaders to make proper changes, run two systems at once and make the mistakes they need to make to learn the right path for the future. Living from hand to mouth every day is no breeding ground for innovation and change.
As quality improvement expert Don Berwick says, improving systems, outcomes and care is the ‘most promising solution’ to the financial constraints surrounding the health service.
Most of the answers to these questions will only come in time. If we are to avoid another catastrophic restructure of services political will, proper funding and genuine clinical engagement will be vital.
Canterbury Tales: foreign systems
Accountable care might be a new approach in England but several areas across the world have been trying to run similar integrated health systems for several years – with health leaders in Spain, New Zealand (pictured) and the USA providing the most prominent examples.
These trailblazing approaches operate in a different environment to the NHS’s fully taxpayer-funded service and use varying degrees of insurance to fund healthcare.
The Canterbury DHB (District Health Board) in New Zealand is one model many – including the King’s Fund – think is an example for the NHS to follow.
The DHB was first dreamed of in 2007 in circumstances many in the NHS in England would recognise – according to chief executive David Meates ‘primary care was isolated, the hospital was the safe place to go, we had tribal elements and we were experts at throwing grenades at each other’.
In a bid to make more of their money and tackle growing demand and an ageing population health leaders came together to bid to take over the local health system and run one ACS (accountable care system) (the DHB) – with a federation of GPs at its heart.
The board now looks after the care of 500,000 people with 9,000 staff employed and has great freedom about where resources are used and concentrated – with one capitated budget. It is chaired by a neutral former high court judge.
At the heart of the change was to stop concentrating on output and focus on outcomes. The board set a variety of targets for improving care – such as reducing smoking prevalence and set up services around those targets.
People at highest risk of needing interventions have advanced care plans, nearly everyone has an electronic care record visible to all health professionals and activity has been massively shifted from hospitals into primary care and the community – a longstanding ambition for the health service in England.
It would appear to have been a successful project – broadly speaking. A King’s Fund review of the system says: ‘What the Canterbury experience demonstrates is that it is possible to provide better care for patients, reduce demand on the hospital, and flatten or reduce elements of the demand curve across health and social care by improved integration – particularly around the interface between the hospital, primary care and community services.’
The review did also reveal – usefully for the NHS – that the transformation had not seen the size of acute providers shrink, however.
Similar projects run in other areas of the world, such as the Alzira system in Valencia, Spain, which is being used as a model for an early stage ACS in Nottinghamshire. The private firm involved in setting up the Valencian system, Centene, is advising local health leaders as the project moves on.
Some estimates suggest the Valencian system has delivered services at a 26 per cent lower cost – with a single provider and a capitated budget taking control for the whole system.
Paid to help the community
Israel could be one of the most useful models for the NHS to follow, with accountable care systems already in place in a country where advanced services are widely free at the point of use – with patients given mandatory free enrolment to one of four national health maintenance organisations.
Each of the four non-profit ‘sick funds’ offer the same full range of healthcare services but are funded by the taxpayer with the only competition based around quality of services.
The system – enshrined by universal healthcare law in 1995 – saw health organisations drastically reduce spending on acute care and pump cash into general practice and community care. Hospital beds were shut, public health heavily boosted and GPs given huge salaries and incentives to work in the community.
The system brings significant stability and allows long-term thinking – with patients effectively enrolled for life. And quality assessments are high, despite spending per capita being significantly lower than the UK.
As with other successful systems Israeli healthcare is strongly reliant on electronic records and data. All patients have instantly updated electronic care records which even allow different areas of the health system to communicate with each other live while care is being given.
On top of that the healthcare organisations have huge data-analysis programs ongoing – looking at waste, inefficiencies, and where clinical care doesn’t do the job it’s supposed to. Academics and health leaders are using data from real patients to work out where prevention needs to be boosted and to intervene in individual cases before symptoms even begin to show.
Speaking at a King’s Fund event looking at the future of commissioning in October, Ron Balicer, a professor at the Clalit Research Institute – one of the four healthcare organisations – said: ‘We have a very stable system, we do not have many reforms or changes in our practice. What we have is going to be there for a while so we have to have long-term thinking – nobody is going to change the system in five years.
‘Everything is funded by the state not the patients and it’s all by capitation. Our interest is not to sell our patients services or to make sure our beds are filled. It’s to keep them healthy for the long term.’
An end to boundaries
Our health service was founded on the principle that it meets the health needs of everyone – but for too long the legislation underpinning it has worked against that value.
In 2017 the NHS – kept afloat by hard-working frontline staff under the crippling pressures of spiralling demand and dwindling resource – is defined by competition and fragmentation, workforce shortages, and patients and doctors are suffering the consequences.
Owing to the decisions of politicians and changing demographics clinicians have never had to do more with less – and at the same time vast amounts of money are wasted servicing a bloated internal market and vast transaction fees. This is unacceptable.
Heart of the matter
Also unacceptable are the perverse incentive systems and confused tariffs which underpin the system leaving doctors forced to work in silos and protect organisational interests. Our NHS needs collaboration, not competition. It needs integration not fragmentation. It needs to make the absolute best use of the limited resources we have – with patients and staff front and centre of every decision made – and public health and prevention, with long-term planning at the heart of our work.
But it is not enough for us to only identify the problems, and to stop at criticising the status quo. The BMA – as the sole representative body for all doctors working across the health system – is in a unique position to propose solutions and influence positive change to help forge genuine progress.
Over the coming months we will be working on a variety of projects looking at the cost of competition and putting forward a model for a collaborative healthcare system devoid of a market.
My vision for that future system is one where doctors feel they are on the same side, where incentives and outcomes are shared, where prevention is as much of a focus in hospitals as for GPs and where there are no organisational boundaries dividing doctors. While that work is in its early stages many things are already clear – and it is time for the Government to take action on these issues.
For too many years we’ve seen soft talk about having cosy conversations, working together and blurring boundaries. But this should not be about blurring boundaries, this must be about putting an end to boundaries.
Divide and rule
The arrangements are squandering precious resources on processes of competition, tendering and invoicing at the expense of frontline patient care. They divide doctors instead of bringing them together, and they put patients in the crossfire of that.
We need to demand some coherence. You can’t on the one hand say you want to have the system working in an integrated way – a vital aim of the NHS – but on the other hand continue to work under forces which drive in the opposite direction. Competition in the NHS must be removed – the Government has a moral duty to do that. Legislative change is needed, and quickly.
Most vital of all the legislative change needed to facilitate proper transformation must come with the resource the health service desperately needs, at a time when the NHS trails equivalent European nations by around £10bn in funding.
Any changes to the system need investment. Talk about transformation is cheap but genuine change requires adequate resources to give clinicians the infrastructure and headspace to lead that change and deliver on behalf of the patients we care for.
Chaand Nagpaul is BMA council chair
Senior staff writer: Peter Blackburn
Production editor: Chris Patterson
Photography: iStock and Kois Miah
Social media: Jon Hinchmore, Rosie Cain and Laura O'Brien