Time to salvage something from the Health Bill’s mess

Today is day seven of the Lords’ Report stage of the deeply unloved Health and Social Care Bill, with many thousands of people, not least doctors and nurses, still expressing fear and anxiety about its meaning and effect. One of the amendments we will debate later today – 300A – seeks to at least salvage something from the mess, by slowing down implementation of Part 3, the competition and regulation section of the Bill.

We have discussed extensively the policy background, and the legal and other implications of this Bill, and major disagreements remain.  The case I advance for amendment 300A is that we have learnt a great deal which tells us that continuing with the implementation based on the timescales envisaged is very high risk.  We propose sequencing for Monitor – simply that it should complete, as far as possible, its job as the Foundation Trust regulator before it embarks on becoming the Economic Regulator for the NHS (‘OFSICK’ as some have coined it). The deadline we propose is April 2016.

Deferring economic regulation until the current role of Monitor comes to a natural end makes sense for a number of reasons.

First, it will allow time for the Nicholson challenge to deliver needed savings.

Second, that the role of Monitor as an independent regulator of FTs should not be weakened through the imposition of additional duties.  Under amendment 300A, Monitor would have completed its role in authorising FTs and be well on the way to light touch regulation, before it took on new responsibilities relating to competition.  The inevitable conflicts of interest, in so far as they are not yet addressed, would be lessened.

Third, it is likely that developing and building the capacity and capabilities required in a wholly new economic regulatory regime will and should take considerable time – there is much to do.

But finally, the most compelling reason for sequencing the introduction of the proposals of this Bill is that it will give time to work with those who have to implement the changes, as opposed to forcing change on them.  Concern at the risks posed by this Bill should be heightened by the poor track record of the Department of Health in overseeing and managing change of this magnitude.

We still have no access to the Bill’s Risk Register – despite rulings from the Information Tribunal for its immediate release – but we know that the damaging impact of this mass of change is already being felt.  This is a programme with risks that are off the scale, as would be expected in a re-organisation programme dubbed “so large it can be seen from space”. Forcing through change in too tight a timescale, without proper buy-in from those who will be tasked with implementing it, and while so much uncertainty and hostility remains, is not the right path to take.

Almost everyone has doubts about Part 3 and how it might work.  A delay in implementation gives time for work to be done, evidence to be gathered and further thought given to matters including the failure and pre-failure regimes.  Some of what is promised for secondary legislation and for guidance could be published and consulted upon – given sufficient time for sensible reflection.

The Government has a chance to pause and think again, and act in a more measured manner, which we believe will ultimately benefit the NHS and its patients.

Baroness Glenys Thornton is Labour’s Shadow Health Minister in the House of Lords. This post first appeared at the Labour Lords blog.

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