The NHS might be being rewired, but its electricity runs to much the same effect

The bill also set another record – albeit one harder to definitively validate. It is probably the worst received piece of NHS law making in history. A lot of noise came from the privatisation fantasists, but much more telling was the response from those who understand how the NHS works and how it responds to policy.

By Sunday evening our online coverage of the bill had attracted 73 comments. Three had something positive to say. Mr Lansley’s agreement to appear for five consecutive days on Radio Four’s PM programme was one sign that he knows his “hearts and minds” mission is of Afghanistani proportions.

HSJ has commented at length on the government’s folly of attempting to deliver reforms that – at their heart – are desirable in such a disruptive and ill-timed manner. But we are where we are, so what does the bill tell us about the NHS of the next three years?

To begin with it seems Mr Lansley has as firm a grasp of the word “independence” as he does of “evolutionary”. The Department of Health says the bill significantly restricts the secretary of state’s “general power of direction” over the NHS. Not quite true.

True independence is like virginity – you cannot partially give it away. Mr Lansley’s chaperones (Messrs Osborne, Alexander and Letwin) have made sure things will not go too far.

The bill is clear the secretary of state can direct the NHS Commissioning Board not only in what it does, but how it does it. He will also now have as much control over Monitor in its new role as economic regulator as he already does over the Care Quality Commission.

One of the lessons of public policy is that a power does not have to be actively used to be influential. To know that it is there is enough.

These powers of direction mean the secretary of state will be unable to escape being held accountable for, say, controversial hospital reconfigurations driven by local commissioning decisions because campaigners will know he could do something about it if he really wanted to.

Some will argue that it is right and proper that there is political oversight of NHS decisions – they just do not include this government. Paul Corrigan – a man no stranger to controversial health legislation – explores how the government may not be able escape the “nightmare” of responsibility whatever their intentions. 

The bill also states the NHS Commissioning Board will have similar powers of intervention with consortia. In what is beginning to look like an increasingly paternalistic role, the board will closely manage financial risk (i.e. decide on brokerage) and reward what it sees as good behaviour. It will also be able to veto the appointment of a consortium’s accountable officer.

The man who will run the Commissioning Board, NHS chief executive Sir David Nicholson, is clearly warming to this fatherly role. Government policy is that below-cost tariff competition will be allowed, where commissioners and providers agree, from April. Sir David’s comments to last week’s Public Accounts Committee made it clear that – if he had anything to do about it – it was not going to happen any time soon.

We supposedly live in a post target world. Within the last few days the Department of Health issued the technical guidance for the 2011-12 Operating Framework. It runs to 261 pages and contains over 100 indicators “against which the NHS will be held accountable nationally during 2011-12”.

The NHS may be being rewired – but the electricity will still run through it to much the same effect.

The reason for this, of course, is the need to find £20bn of efficiencies.

This imperative also lies behind another aspect of the Commissioning Board’s power which became clear this week: its enormous direct spending budget – probably in excess of £20bn. The implications are explored by the Audit Commission’s head of health Andy McKeon here.

Finally, the guidance published alongside the bill suggests the majority of the staff currently employed by strategic health authorities and primary care trusts will need transfer to the new organisations to make the new system work (and keep redundancy costs under control).

There seems to be a belief in some parts of the Department that these people are unemployable elsewhere and will happily troop off to their next posting once commanded. However, to the contrary, without an urgent and concerted effort to champion the importance of these new roles to the best and brightest, the government may soon find its NHS evolution is heading for a Neanderthal-style cul-de-sac.