The Health White Paper “Equity and excellence – liberating the NHS”: the legal challenges

The publication of the Health White Paper “Equity and excellence – liberating the NHS” on 12 July 2010 has clearly set the direction of travel for the Coalition Government’s health reforms. This article provides an initial assessment of its proposals. It will be followed bya series of alerts, identifying the key legal issuesas they crystallise.

05/08/2010

“Those who see the White Paper as a series of technical changes misunderstand its purpose”

David Nicholson, 13 July 2010, letter to NHS Trust CEOs

The publication of the Health White Paper “Equity and excellence – liberating the NHS” on 12 July 2010 has clearly set the direction of travel for the Coalition Government’s health reforms. Unlike many previous reforms, this is not about moving pieces around on the chess board. Change is coming that will bring an uncertain future. Many will view these changes with alarm or despondency but others will see exciting opportunities. Either way there are elements to the new landscape that are a leap in the dark.

The White Paper sets out a broad strategy covering:

  • putting patients and public first
  • improving healthcare outcomes
  • autonomy, accountability and democratic legitimacy, and
  • cutting bureaucracy and improving efficiency.

However, there is simply not enough detail to really know how the system will fit together. A speaker at a recent  health conference (one of the many conferences to consider the implications of the change) commented that “incentives will make or break the White Paper”. Incentives for GPs to engage in GP Commissioning Consortia (GPCCs). Incentives for the GPCCs to make a step change in outcomes and the re-design of services and incentives for whatever organisations support the GPCCs to help them to do so. Although it seems unlikely that GPCCs will have a similar makeup across the country, their form will to a large extent be a product of how far they become active commissioners in their own right, retaining in house capability, or buy in expert support from outside agencies – and what sort of agencies will be successful in this new role. 

These incentives could produce peer pressure for some radical and rapid change in practice and performance among primary care clinicians. With incentive payments to GPCC (or “premiums” as they are described in the White Paper) it is not hard to imagine some pretty interesting conversations taking place between the GPCC and underperforming practices. And if the practices continue to underperform will the GPCC have the ability to terminate their membership of the GPCC? Perhaps even the opposite – high performing practices touting their success and the price that might bring in return for changing their allegiance to another consortia.

Many of the changes proposed will be welcomed and long overdue - moving from a system built around acute hospitals towards one that is build around community management of long term conditions and public health outcomes. The current infrastructure supports existing vested interests and those changes will not be easy to make.   But necessity is the mother of invention and in an age of austerity there will be plenty of necessity.  Whether the benefits outweigh the high cost of changes remains to be seen. A lot depends on an untried system that, however important it is to have clinical engagement in commissioning, is still reliant on the success of relatively untried professionals. Can they deliver world class commissioning?

The legal issues emerging from the White Paper are complex and far reaching. As one of the leading providers of legal services to the NHS, Bevan Brittan aim to contribute to this debate. Over the coming weeks and months we will publish a series of alerts, identifying the key legal issues as they crystallise.

The schedule of alerts is set out below. This will cover issues ranging from:

  • The employment implications, particularly for providers.
  • the design and role of the GP commissioning consortia.  What is the magnitude of the “premium” that will be paid to the GPCC?  Will they be free to make or buy in commissioning support?  What sort of “statutory public body” will they be? How will they manage performance of GP practices within its group?
  • Market management, competition and data flows and how these will work together.
  • What are the incentives that will make the system work and deliver changes in commissioning, clinical outcomes, and improved pathways?
 Subject Publication Date
The Health White Paper “Equity and excellence – liberating the NHS”: The legal challenges 5 August
General Practitioner Commissioning Consortia – Structures & relationships 10 August
General Practitioner Commissioning Consortia  - The workforce implications 24 August
General Practitioner Commissioning Consortia – Commercial Issues 7 September
The PCT & Community Estate – Challenges and options 21 September
The regulatory landscape 5 October
Provider changes & social enterprises 19 October
Contract changes for provider services 2 November
External support for General Practitioner Commissioning Consortia 16 November
General Practitioner Commissioning Consortia – Clinical governance and performance management 30 November
Health and Local Government 14 December

  

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