Viewpoint: Dr Kailash Chand: Why we should repeal Health Act and NHS should be preferred provider

I've got 35 years experience of working in the NHS, from a junior doctor to a GP, and then chairman of a PCT and now deputy chairman of BMA Council, writes BMA deputy chairman Dr Kailash Chand.

Dr Chand: 'If we are really serious about achieving proper integration, it's necessary to repeal the Act.' Pic: Michele Jones
Dr Chand: 'If we are really serious about achieving proper integration, it's necessary to repeal the Act.' Pic: Michele Jones

This has taught me that most things can be made to work – even across organisational and local authority boundaries – if you have the right working relationships which develop over time through honesty, openness and trust.

The Health and Social Care Act has been an enormously disruptive reorganisation and it has produced hugely negative consequences for the NHS.  The good idea within so many bad ideas was to encourage clinical leadership and more clinical influence over the planning and commissioning of healthcare.  But that could have been achieved without the rest of the reforms, most obviously by reforming PCT boards to include more clinicians and by giving GPs and other healthcare professionals more influence over PCT commissioning.

The introduction of the Act itself was a huge contradiction of election promises about avoiding top-down reform of the NHS.  It created vast, unnecessary change with little political mandate.  The test for any government health policy should be whether it benefits patients.  There is absolutely no appetite for another top-down NHS reorganisation.  This will be of no benefit to either doctors or the millions of patients who rely on the health service every day.  The NHS needs stability.  But we warned the government there would be some serious problems with this legislation.

I hear from doctors that they are particularly concerned about three key aspects of the government's health reforms – and I think these can be addressed without massive structural disruption.

1. Integration of services is not being prioritised over competition between services – this is likely to be contrary to patients' best interests.  The Act places too much emphasis on commercialisation and competition, which threaten to undermine the ethos of the NHS and make integration of service provision and collaboration between primary and secondary care harder to achieve.

Currently, the Act treats the need to integrate services and ensure there is competition between services and providers as equally important.  This is wrong.  Integration must be given prominence over competition.  The equal status between integration and competition in the Act has led to confusion among commissioners who may feel their default is to put all services out to competitive tendering – more on that later.

2. Services are at risk of fragmenting because of the multitude of providers, which has risk to patient care.  The Act relies heavily on using 'market forces' to shape health services.  But this fixation on competitive levers in the NHS is unhelpful.  An increase in the number of providers in the local health economy increases the risk of fragmentation of patient care, and the fragmentation of providers makes seamless care an aspiration rather than a reality.

The NHS should be the preferred provider of patient care.  Some alternative providers to the NHS can provide an excellent service to patients.  However, commissioners must ensure these services are completely integrated with GP and hospital services.  The Act needs to better free them up so that they can.

Furthermore, the Office of Fair Trading and Competition Commission really have no place in determining how services should be delivered to patients – their expertise is in ensuring there is choice for consumers in private markets, such as banking.  Do we really need this type of market regulation in the NHS in addition to Monitor?  The NHS is very different from private industries and how these sectors are regulated should be different to how the NHS is regulated.  It is not satisfactory to have a system where decisions made by doctors and other NHS staff to improve health services for the benefit of patients are being overturned by the OFT and Competition Commission.

3.There is an ongoing lack of clarity about when services are required to be competitively tendered.  The 'section 75' procurement regulations stem from Part Three of the Act but uncertainty still abounds about their interpretation.  Commissioners are inadequately supported in interpreting this part of the legislation, this can waste commissioners' time when their focus should be on improving patient care.  Too many services are being put out to competitive tendering by commissioners due to them believing this is necessary to comply with the section 75 regulations.  In September 2013, it was reported that the majority of new contracts had been put out to tender by commissioners.  This is worrying.  Clinical commissioners should be able to determine whether it would be beneficial to patients to competitively tender services.

How do we make the NHS fit for the future without more top-down reorganisation?  Local commissioners must be allowed to organise care without fear of falling foul of competition law.  NHS providers should be supported rather than undermined with threat.  I am not saying there isn't a role for alternative providers but they should be used only where the NHS cannot provide or is of insufficient quality.  The Future Forum promised that commissioners would only need to use competition 'when in the patient's interest' – I don't want the Act to get in the way of that.

If we are really serious about achieving proper integration, it's necessary to repeal the Act.  I'm not saying we should change all the structures – stability is important – but we do need to start again, particularly to give integration a real chance over competition.

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