Patient choice, not ending 'privatisation', should be the focus of new legislation

Most pieces of government legislation go unnoticed. A few make it into the history books as a result of what they achieve. But only one, that I know of, has its own history relating how it came to be law – a history of political process not policy outcomes. It is, of course, the 2012 Health and Social Care Act which found its historian in Nick Timmins, who called his account “Never Again?”.

And what this history teaches us is that arguments about NHS “privatisation” have the potential to overshadow and unbalance more important discussions about the right legislative framework for the NHS – just ask David Cameron and Andrew Lansley.

If yesterday’s legislative proposals for an NHS Integration Bill are also framed as a debate about the future role of private providers in the NHS then they too will founder on the same rocks as the 2012 Act. The cross-party Health Committee knew this when in 2018 it recommended that “national bodies take proactive steps to dispel misleading assertions about the privatisation and Americanisation of NHS”.

Privatisation

Yesterday’s proposals will not satisfy the small minority of people who are ideologically opposed to the use of the private sector. And a debate over privatisation would be irrelevant for the majority of people who take a more pragmatic view. After all, 68 per cent of people don’t mind whether their NHS care is provided by a public, private or voluntary organisation if it is of high quality and free at the point of use^[1]. And independent providers have already indicated that they don’t expect to lead integrated care systems^[2] – a role most appropriately taken on by public bodies.

The fact is that the proposed changes aren’t going to fundamentally change the role of independent and other non-statutory providers in the NHS of tomorrow. As it has been since 1948 the NHS will continue to be a partnership of public, private, social enterprise and voluntary organisations. And like others around the health system we can see both positive and less desirable potential consequences of the proposals published today.

A new procurement regime that is clearer about what should and should not be tendered would be welcomed by the independent sector. And we are pleased that there is clarity that under any new procurement regime the most important factor will remain service quality – with no discrimination against providers whether public or private.

Let’s take a lesson from history and never again let a misplaced argument about privatisation get in the way of what really matters

We welcome too the emphasis on patient choice. And today’s proposals recognise that a right to choose is not much use to patients if they can’t exercise it. So it’s good to see proposals to ensure that patients have genuine choices of different providers, and proper oversight and enforcement so that patients have somewhere to go when things go wrong.

On the other side, we don’t think that the proposals have yet met the test from the House of Commons Health and Social Care Committee to be “clearer about the input and roles local government, the voluntary and wider community sector, as well as independent providers, are expected to have in the future of the NHS”. Independent providers care for millions of NHS patients each year but it is not at all clear how they will fit into the governance structures of ICS systems. We think there is more work needed to establish the ground rules for the participation of non-NHS bodies in integrated care.

And there’s a more fundamental challenge than that. The years since 2013 have seen the gradual replacement of a rules-based system with one founded on relationships. Or from competition to collaboration, if you prefer. This has arguably made the NHS much harder to understand – especially from the perspective of patients and the public. What is an STP? An ICS? Who is in charge? And who is accountable?

Throughout this shift the NHS has shown a remarkable ability to work around legislative frameworks that it considers unhelpful. For all the controversy over the Public Contract Regulations still only about 2 per cent of CCG spending is through contracts put out to competitive tender.

So as government considers the NHS Integrated Care Bill it will also need to wrestle with the broad question of how to set the right rules for a system that has already departed in important ways from existing legislative structures at a time of major financial and performance challenges. This is an important question for our sector and other NHS partners – what will be the rules of the game in future and will we stick to them? How can the NHS ensure it acts within existing laws while anticipating a different legal framework?

There is much to discuss in the proposals – from the future role of NHS national bodies to how a new legislative framework can speed the development of truly integrated services. Let’s take a lesson from history and never again let a misplaced argument about privatisation get in the way of what really matters.