NHS England to be abolished: Where might we end up?

Control versus independence

The answers to the “who”, “what” and “how” questions over time have reflected the tensions between two contrasting views of public administration. On the one hand the centralised hierarchy school of thought considers that the public administration exists primarily to transpose the will of government into concrete action. This perspective emphasises the legitimacy of public administration which comes from close oversight and intervention by the people’s representatives.

On the other hand the idea of administrative independence places greater value on a rules-based approach which is said to produce more stable and predictable outcomes.

These two perspectives are relevant to all areas of public administration but given the scale and cost of the NHS and its role in all our lives these issues cut through into the public debate. Can you imagine prominent articles in the Daily Mail and The Times about the administrative arrangements for any other public service?

So how will the questions of “who”, “what” and “how” be addressed as the centre of the NHS once again goes through a process of major change and will the control versus independence debate influence the answers?

Who?

The simple answer to this question might seem to be “the Department of Health and Social Care, not NHS England” but the reality will undoubtedly be more complex. The concept of “span of control” suggests there are limits to what one organisation can deliver effectively. It is not as if the Department has been at a loose end since NHS England was established. There is likely to be a substantial element of delegation or outright transfer of functions to local commissioners (Integrated Care Boards in their current guise), which continues a trend which started with the delegation of elements of primary care commissioning by NHS England within the first couple of years of its establishment. There are also tasks which involve technical expertise but relatively little discretion and which can be done most effectively on a national or regional footprint. We might see these move to existing administrative bodies such as the NHS Business Services Authority.

What? 

The government aims to eliminate duplication of effort in leading the NHS and increase political accountability. However it is important to distinguish between those matters which have an inherent political importance, such as decisions about funding and national priorities, and those matters which only assume a political dimension when they go wrong. There is of course a broad category of matters which do not fit neatly into these boxes as they are not of national importance but have political aspects. The opportunity should be taken to identify those matters which are handled proactively by the Department (ex ante control) and those which sit elsewhere but are subject to effective arrangements for oversight and reactive intervention (ex post facto control).

How?

The legislation which established NHS England sets out not only “what” NHS England can or must do, but also significant detail on “how” it is to approach these tasks. The latter requirements, which are typically framed as “have regard” duties, reflected the intention that NHS England should operate at arms’ length from government. Government would not exercise day to day control but would define the parameters of how NHS England would go about its business through a combination of requirements within legislation and the NHS Mandate.

While the aims of the “have regard” duties are laudable, such as addressing health inequalities or promoting patient choice, they mostly apply indiscriminately across all of NHS England’s activities. It is left to individual decision-makers to determine the relevance of those factors to each decision. Seeking to ensure that NHS England as an arms’ length body acts in the best interests of the NHS and its patients has therefore led to instances of cumbersome decision-making processes.

For these reasons a simple “lift and shift” of NHS England’s functions into the Department probably isn’t desirable. As a part of central government, the Department can be expected to take relevant factors into account in its decision making on the basis of general principles of administrative law. Maintaining the various “have regard” duties in their current form where a function rests with the Department could be seen as costly gold plating of limiting value.

The real-world impact of the changes

Having worked with NHS England since its inception, we have seen up close the value of many aspects of its work. There is always a risk of loss of institutional memory in these circumstances and we hope that steps will be taken to minimise this.

For the remainder of its lifespan NHS England may be focused more on delivery of policy rather than its development, but that is no small task and is essential to the provision of safe and effective care to patients. NHS England will also continue to be uniquely placed to identify emerging trends across the health service and respond to these. However the reorganisation unfolds that capability should not be lost.

All of us within law firms working for NHS England are proud of the work we do together and look forward to continuing to work with NHS colleagues in this unique and fascinating area of legal practice in whatever form that will take in the years ahead.