The NHS can be saved, but only if we amend the Bill

Substantial amendments are needed to the Health and Social Care Bill in four areas:

• The role of the Secretary of State;
• The nature and accountability of Commissioning Consortia;
• The functioning of the “market” created by the Bill;
• The implementation programme

Role of the Secretary of State

1. Restoration of the duty on the Secretary of State to provide or secure a comprehensive health service, not just to promote one.
2. Reaffirm that only the Secretary of State, subject to parliament, can impose new or higher charges for NHS services.
3. Secretary of State to remain responsible for the final decision, if needed, when major service changes are opposed by local democratic scrutiny bodies on behalf of their community.

Nature and accountability of Commissioning Bodies (i.e. GP Commissioning Consortia or any new term)

4. Local commissioning bodies to be public authorities required to adhere to the full standards of conduct and transparency that this implies.
5. Membership of local commissioning bodies to include a substantial proportion of elected councillors as per Coalition Agreement to improve transparency and accountability.
6. Local commissioning bodies to have responsibility for clearly defined geographical populations and to be funded on the basis of relative need as now.
7. Local commissioning bodies to be co-terminous with local authorities which commission social services
8. The commissioning function (i.e. not back office functions) to be carried out directly by public authorities rather than subcontracted to non-public bodies; using public sector staff and employing the skills of existing PCT staff
9. Unless Commissioning bodies have a majority of councillors, there must be scrutiny of all commissioning decisions by local elected councillors either through the local authority, Overview and Scrutiny Committees, or Health and Wellbeing boards (which must have a majority of councillors to fulfill this role)
10. The scrutiny body above to have powers to provide for full scrutiny, including the power to require attendance of all organisations in the local health economy funded by public money, including Foundation Trusts and any external support for commissioning consortia.
11. Where the local authority scrutiny body objects to a commissioning proposal or to a significant service change consequent upon it, and no local agreement is subsequently reached, there must be provision for public consultation and if still no agreement for plans to be referred to the National Commissioning Board and – if needed – to the Secretary of State for final decision.
12. Amendments to restrict additional freedoms only to Foundation Trusts that successfully engage substantial proportions of their local populations as active members
13. Foundation Trusts to retain their current status in UK and EU competition law

Constraints on the operation of the market

14. Commissioning to be governed by a requirement/duty on Commissioners, when considering contracting with any new provider – or offering the choice of a new provider – to be satisfied that broader service stability is safeguarded and that cherry-picking and cream-skimming are avoided:
The matters which must be safeguarded are
a) The financial viability of remaining NHS services (unless there is an explicit transparent proposal to close a service)
b) Adequate case-load to maintain clinical competence and effective organisation of care for any remaining NHS services including emergency services, rescue services, complex cases, education and training needs, and clinical research capacity
c) The maintenance and promotion of clinical networks.
d) The integration of care pathways and the integration of health and social care

The requirement/duty must also apply to the National Commissioning Board.

15. Commissioners to have freedom, in their approach to contracting and commissioning, to – for example – “bundle” tariffs and contract for whole care pathways, applying broader “Best value standards” learning from local authority experience.

16. Complete ruling out of any competition based on price for tariff-based services
(and not just at the point of referral or the point of patient choice);

17. For services not subject to the tariff to ensure that procurement is based on both best value with minimum quality standards by placing this duty on local commissioning bodies, the National Commissioning Boards and Monitor.

18. The role of monitor to include the promotion of equity/fairness in respect of access to health services

19. Provide that no Commissioning body act in a way, or be required to act in a way that leads them to be considered undertakings for the purposes of competition law.

20. Statutory provision to ensure that provision of clinical services to the NHS is not governed by current EU and UK competition law to a greater extent than is the case now. In particular to provide that vertical integration of services is not impeded by competition law.

21. Robust arrangements to manage the conflicts of interest inherent in commissioning so that no-one can be in a position to make a decision to place a contract if that person, whether GP, employee or external consultant, has any link financial, commercial or through family with a provider which might benefit from the placing of that contract.

Properly managed implementation

22. The changes to commissioning to be piloted and evaluated before full roll-out

23. The introduction of the new structures should be rolled out in a staged manner, retaining (albeit in slimmed down or eventually shadow form) PCT clusters and SHAs until it is clear that the new system is working properly, in particular as regards to financial control, workforce, patient safety and strategic service change. The amendment could put a sunrise clause in the bill dependent on success in these respects.

Charles West, Graham Winyard Version 4, 29.3.2011

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